I. General Provisions, Scope of Application
01. Unless otherwise agreed, our offers, deliveries, and any other related services provided by us to the persons specified in Section I, Paragraph 2, are governed exclusively by these Terms and Conditions of Sale and Delivery. We do not recognize any conflicting terms and conditions of the customer or any terms and conditions not contained in our Terms and Conditions of Sale and Delivery, even if we do not specifically object to their validity in individual cases.
02. Our Terms and Conditions of Sale and Delivery for domestic transactions apply only to persons domiciled in the (Federal Republic of Germany) who, at the time of concluding the contract, are acting in the course of their commercial or self-employed professional activities (businesses), as well as to domestic legal entities under public law or a domestic special fund under public law.
03. Our Terms and Conditions of Sale and Delivery also apply to all future offers, deliveries, and other services provided to the customer, even if they are not expressly agreed upon again.
II. Offer Documents, etc., Customer’s Duty to Provide Information, Scope of Delivery, Right to Make Changes
01. Our offers are subject to change and non-binding unless they are expressly designated as binding or contain a specific acceptance period. This also applies if we have provided the customer with drawings, plans, catalogs, samples, cost estimates, and other documents, as well as any software, to which we reserve all ownership rights, copyrights, and industrial property rights (including the right to apply for such rights). Confidential information, in particular offers and order confirmations for machinery and equipment as well as drawings, may only be made available to third parties with our consent.
02. The customer must inform us prior to the conclusion of the contract if the ordered 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.
03. The scope of delivery shall be determined by our written order confirmation; in the event of an offer on our part and its timely acceptance, the offer shall prevail. The content of ancillary agreements and amendments shall be subject to our written confirmation.
04. We reserve the right to make design and material changes, provided that such changes do not significantly or adversely affect the normal use or the use of the delivered item as specified in the contract, and provided that the customer can reasonably be expected to accept the change.
05. For items manufactured according to the customer’s specifications that are not mass-produced items 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.
III. Price and Payment
01. The prices quoted are ex works, excluding freight, packaging, and insurance, plus value-added tax at the applicable statutory rate.
02. Our invoices are issued and payable in euros. Unless otherwise agreed, they are due in full 30 days after the invoice date. Payment is not considered to have been made until we have unrestricted access to the amount (receipt of payment).
03. Bills of exchange and checks are accepted only on account of performance and are considered payment only after they have been credited without reservation. All costs incurred in this regard, in particular bank, discount, bill-of-exchange, and other charges, plus sales tax, shall be borne by the customer and are due immediately.
04. Offsetting or withholding payments in a manner equivalent to offsetting is permitted only on the basis of legal claims by the customer that we have acknowledged, that are undisputed, that are ready for adjudication, or that have been legally and finally determined. In the event of defects in the delivery, the customer’s counterclaims remain unaffected.
05. If payments are deferred or made later than agreed, default interest at a rate of three percentage points per annum above the respective base interest rate—but not less than 5% per annum—shall be charged for the interim period without the need for a formal notice of default. Once default occurs, default interest at a rate of eight percentage points per annum above the applicable base interest rate may be charged. We may demand higher interest on other legal grounds. The contracting parties remain free to prove actual damages that are higher or significantly lower. Our rights under Section IV, Paragraph 6 remain unaffected.
06. In the case of installment payment agreements, the entire remaining debt, including all bills of exchange not yet due, shall become immediately due and payable if the customer a) is 14 days in default on an installment, or b) is wholly or partially in default on at least two installments and the amount in arrears amounts to 10% of the purchase price, or c) has suspended payments or is subject to an insolvency petition regarding their assets. The remaining debt declared due shall be discounted at the refinancing interest rate actually applied by us.
IV. Delivery Time, Doubts Regarding Creditworthiness, Default in Acceptance
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 customer and the full clarification of technical questions to be answered by the customer, as well as the details of the desired specifications to be provided by the customer. The delivery period does not include any time during which the customer is in arrears with an agreed payment; that is, the delivery period is extended by the duration of such arrears.
02. Adherence to the delivery deadline is subject to correct and timely supply from our own suppliers. We will notify the customer of any impending delays as soon as possible.
03. The delivery period shall be extended—even during a period of default—by a reasonable amount in the event of force majeure and any unforeseeable obstacles arising after the conclusion of the contract for which we are not responsible, to the extent that such obstacles demonstrably affect the performance of the obligation owed. We shall notify the customer immediately of the start and end of such obstacles. 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 withdraw from the contract; we shall immediately refund any consideration already paid by the customer.
04. The delivery deadline is deemed to have been met if, within the specified period, the circumstances specified in Section V, Paragraph 4 that effect the transfer of risk have occurred. If we are in default of delivery, we shall be liable only within the limits specified in Section X.
05. If, after the conclusion of the contract, it becomes apparent that our claim for payment is at risk due to the customer’s inability to pay, we are entitled to refuse to perform our obligations and to cease any actions preparatory to performance. The right to refuse performance shall lapse if payment is made or security is provided for it. We may set a reasonable deadline for the customer to make payment or provide security. Upon the unsuccessful expiration of this period, we are entitled to withdraw from the contract. In the case of contracts for the manufacture of non-replaceable items (custom-made products), we may declare our withdrawal immediately; the statutory provisions regarding the dispensability of setting a grace period remain unaffected.
06. If the customer defaults on acceptance of the delivered 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 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.
V. Delivery, Shipping, and Transfer of Risk
01. All shipments are made at the customer’s expense and risk.
02. Shipping is at our discretion, but without any guarantee of the lowest-cost transportation and—unless otherwise agreed—ex works from our facility.
03. We are entitled to make partial deliveries only if—the partial delivery is usable by the customer for the contractual purpose,—the delivery of the remaining ordered goods is guaranteed, and—this does not result in any significant additional effort or costs for the customer (unless we agree to bear these costs).
04. For deliveries, the risk passes to the customer at the moment a shipment leaves our factory or warehouse. This also applies in the case of partial deliveries. If shipment is delayed due to circumstances beyond our control, the risk passes to the customer upon notification that the goods are ready for shipment. In this case, at the customer’s request and expense, we are obligated to obtain the insurance coverage requested by the customer. To the extent that transportation is carried out by our employees, we bear the risk with respect to circumstances attributable to the fault of our employees; however, the risk of fortuitous events is borne by the customer in all cases. If installation or assembly is part of the contractually agreed service and acceptance of the service is required, the risk passes at the end of the day on which the acceptance inspection was conducted or—if it was not conducted due to the customer’s fault—should have been conducted, but no later than the end of the day on which the buyer has put the delivered goods into operation for its own commercial purposes. Notwithstanding the foregoing, the customer is obligated in such cases to pay for the services performed if the delivered items are damaged or destroyed at the installation site prior to acceptance due to unavoidable circumstances for which we are not responsible.
VI. Preparation for Installation, etc.
01. To the extent that we have agreed with the customer on the time of delivery, installation, or setup, 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.
02. If the customer is responsible for our inability to complete the planned work, or to complete it in full or within a reasonable time, the customer is obligated to compensate us for the resulting damages, in particular for the additional costs incurred due to extra trips and due to wasted or additionally required working time of our employees. When determining the damages, the additional costs for our employees’ overtime and the additional costs for extra trips may be calculated in accordance with our currently valid installation cost guidelines. However, the contracting parties remain free to prove that the actual damages were higher or significantly lower.
VII. Acceptance Inspection, Acceptance
01. The parties may agree—particularly when installation work is 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 will notify the customer of the date of the acceptance inspection.
03. The costs of the acceptance inspection (including the costs of test materials and operating resources) shall be borne by the customer. The costs of our personnel, however, 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 exhibit no defects or only minor defects, or—the acceptance inspection could not be carried out due to the customer’s fault, or—the customer 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 IX apply.
VIII. Retention of Title and Other Security Interests
01. We reserve title to the delivered goods until all claims—including future claims—arising from the business relationship with the customer (including all ancillary claims, such as bill of exchange costs, financing costs, and interest) have been fully satisfied. If a current account agreement has been concluded with the customer, the retention of title shall remain in effect until the acknowledged current account balance has been paid in full. Upon acceptance of a check or bill of exchange, performance is deemed to have occurred only when the check or bill of exchange has been honored and we can dispose of the amount without risk of recourse. To the extent that payment via the check-bill-of-exchange procedure has been agreed upon with the customer, the retention of title also extends to the customer’s cashing of the bill of exchange issued by us and does not expire upon the crediting of the received check to our account.
02. The customer is obligated to handle the goods subject to retention of title with due care and to notify us immediately in the event of attachment, seizure, damage, or loss; a breach of this obligation entitles us to rescind the contract. The customer shall bear all costs incurred, in particular in connection with a third-party action to set aside an attachment and, if necessary, to replace the delivered goods, to the extent that such costs cannot be recovered from third parties.
03. The customer may process and sell the goods in the ordinary course of business, but may neither pledge them nor assign them as security.
04. In the event of a delay in payment or if the customer breaches other material contractual obligations, we are entitled to provisionally reclaim the goods subject to retention of title. The exercise of the right of reclaim does not constitute a withdrawal from the contract.
05. The customer assigns to us the purchase price, remuneration for work,or other claims (including the acknowledged balance under a current account agreement or, in the event of the customer’s business partner’s insolvency, the “causal balance” existing at that time) in the amount of the invoice value of the goods subject to retention of title; we accept the assignment. We revocably authorize the customer to collect claims assigned to us on our behalf in the customer’s own name. This authorization to collect may only be revoked if the customer fails to properly fulfill its payment obligations. At our request, the Customer must, in such a case, provide the information necessary for collection regarding the assigned claims, make the relevant documents available, and notify the debtor of the assignment. The assignment of claims pursuant to the first sentence serves as security for all claims—including future ones—arising from the business relationship with the customer.
06. If the realizable value of the collateral granted to us in accordance with the foregoing provisions exceeds our claims against the customer by more than 10% on a non-temporary basis, we shall, at the customer’s request, release collateral of our choosing to that extent. The aforementioned coverage limit of 110% shall be increased by the amount of value-added tax incurred when we realize the collateral—arising from a value-added tax-liable supply by the customer to us—by that amount of value-added tax.
IX. Warranty, Claims for Defects
01. Our warranty is governed by the following provisions. However, paragraphs 3, 7, and 9 of the following provisions shall not apply if our customer (or the customer’s buyer or another buyer) sells the newly manufactured delivered item, without modification, to a consumer, i.e., to a natural person for whom this purchase contract cannot be attributed to their commercial or self-employed professional activity. In such cases, the statutory provisions shall apply in lieu of the aforementioned paragraphs.
02. If the purchase constitutes a commercial transaction for both parties, the customer must immediately report defects of any kind in writing, to the extent that this is consistent with the ordinary course of business—though hidden defects only upon discovery—; otherwise, the goods shall be deemed accepted.
03. If the delivered goods exhibit a significant defect, the customer may, at our discretion, demand either the rectification of the defect (repair) or the delivery of a defect-free item (replacement) as a form of subsequent performance. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally obligated to install it. We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transportation, travel, labor, and material costs (excluding removal and installation costs), provided that a defect actually exists. However, if the customer’s request for rectification of the defect proves to be unjustified, we may demand reimbursement from the customer for the costs incurred as a result.
04. In urgent cases, e.g., where operational safety is at risk or to prevent disproportionate damage, the customer has the right to remedy the defect themselves and to demand reimbursement from us for the expenses objectively necessary for this purpose. We must be notified of such self-remediation immediately, and in advance if possible. The right to self-remediation does not apply if we would be entitled to refuse corresponding subsequent performance in accordance with statutory provisions.
05. If we are unwilling or unable to provide rectification or a replacement delivery—in particular, if such action is delayed beyond a reasonable period for reasons for which we are responsible, or if the rectification or replacement delivery fails in any other way— then the customer, provided that further attempts at subsequent performance would be unreasonable for the customer, is entitled, at his or her option, to rescind the contract or to reduce the purchase price.
06. No claims for material defects arise in the event of unsuitable or improper use of the delivered item, faulty assembly or commissioning by the customer or by third parties not commissioned by us, natural wear and tear (particularly of wear parts), improper or negligent handling of the delivered item, inadequate maintenance, unsuitable operating materials and replacement materials, defective construction work, unsuitable building site conditions, chemical, electrochemical, electrical, or electronic influences, provided these are not attributable to our fault. The customer acknowledges that the full operational capability of custom-designed systems is achieved only after a reasonable break-in period has elapsed.
07. Subject to the second sentence, the statute of limitations for claims for material defects expires as soon as the delivered item has reached 2,500 operating hours, but no later than one year. In the event of injury to life, limb, or health for which we are responsible, as well as in cases of willful misconduct or gross negligence, the statute of limitations for claims for material defects is two years. The statute of limitations begins upon delivery. If an acceptance inspection is required, 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 customer’s fault—should have been conducted, but no later than the end of the day on which the customer put the delivered item into service for its own commercial purposes.
08. We are liable for damages resulting from defects in the delivered goods only within the limits specified in Section X.
09. If the defective delivered item is a product supplied by a third party, we are entitled to assign our claims for material defects against our suppliers to the customer and to refer the customer to pursue such claims (including through legal action) against them. Claims against us under paragraphs 3 and 8 may only be asserted if the claims against our suppliers cannot be enforced despite timely (legal) action or if such action is unreasonable in the specific case.
X. Limitation of Liability
01. Unless otherwise provided in these General Terms and Conditions, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the applicable statutory provisions. Our liability for damages—regardless of the legal basis, in particular arising from impossibility, delay, breach of contract, breach of duties during contract negotiations, and tort—is limited in accordance with this Section X, to the extent that fault is a determining factor in each case.
02. We are liable for damages—regardless of the legal basis—in cases of willful misconduct and gross negligence. In cases of ordinary negligence, we are liable only a) for damages resulting from injury to life, body, or health, and b) for damages resulting from a breach of a material contractual obligation. Essential contractual obligations are those obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the contracting party regularly relies and is entitled to rely. In the event of a breach of material contractual obligations, however, our liability is limited to compensation for foreseeable, typically occurring damages.
03. The limitations set forth in this Section X do not apply if we have fraudulently concealed a defect or have provided a warranty regarding the quality of the goods. The limitations set forth in this Section X do not apply to our liability under the Product Liability Act.
04. To the extent that our liability is excluded or limited under the foregoing provisions, this also applies to the liability of our officers, employees, workers, staff, legal representatives, and other agents.
05. The statute of limitations for the customer’s liability claims against us is governed by Section IX, Paragraph 7, unless the claims arise from a tort or under the Product Liability Act.
XI. Place of Performance, Jurisdiction, Governing Law, Severability Clause
01. Unless otherwise agreed, the place of performance is 33397 Rietberg (Federal Republic of Germany).
02. These Terms and Conditions of Sale and Delivery and all legal relationships between us and the customer are governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
03. To the extent that the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all rights and obligations of the contracting parties arising from transactions of any kind—including disputes concerning bills of exchange and checks—shall be the Local Court of Gütersloh (Federal Republic of Germany). The same applies if the customer does not have a general place of jurisdiction in Germany, relocates their place of residence or habitual abode outside Germany after the conclusion of the contract, or if their place of residence or habitual abode is unknown at the time the action is filed. However, we are also entitled to sue the customer at his or her general place of jurisdiction.
04. Should any provision of the contract be wholly or partially invalid for any reason, this shall not affect the validity of the remaining provisions. If the contract contains gaps in its provisions due to such a void or invalid provision or in these General Terms and Conditions, the legally valid provisions shall be deemed agreed upon to fill these gaps, which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of the contract or these VLB had they been aware of the gap.
Terms and Conditions of Sale and Delivery for Domestic Transactions of WP Digital GmbH (VLB)
April 1, 2015
