General Terms and Conditions Weber & Leucht GmbH (hereinafter referred to as W+L)
Version as of July 01, 2012
I. Basis for agreements/ contracts with W+L
I.1. These general terms and conditions apply to the company Weber & Leucht GmbH, hereinafter referred to as “W&L“ and its contract parties (or suppliers), hereinafter referred to as “customers“. With the first agreement / inclusion of these general terms and conditions in a contractual relationship, the contract parties agree that these general terms and conditions are also agreed upon and valid for all following contracts, even if it is not again expressively referred to these general terms and conditions.
I.2. General terms and conditions of customers of W&L are opposed inasmuch as they conflict with the general terms and conditions of W&L. They do not become part of the agreements/ contracts made with W&L.
I.3. The contract parties must comply with the obligation of inspection and notification of a defect in accordance with sub-section 1 of §377 HGB (Commercial Code). Between W&L and their contract parties the legal consequences apply according to sub-sections 2 to 4 of §377 HGB (Commercial Code)
I.4. The agreements according to item I.4 also apply if the transaction is not a sales contract according to §433 BGB (German Civil Code) and §§373 HGB (Commercial Code) et seq. .
I.5. The agreements according to items I.4 and I.5 also apply if the contract party of W& L is not a merchant.
II. General agreements
II.1.Place of performance of W&L's service and the production and delivery of documents/products drawn up by W&L is the seat of the company in Fulda (Germany). In the case of forwarding organised or carried out by W&L, the place of performance will also not be changed.
II.2. Irrespective of obligations in force or agreed upon according to §377 HGB (Commercial Code), objections have to be raised in writing or at least via e-mailing within 14 days after the customer has attained possession of W&L's service/documents/products. Failing that, customers can neither assert their claim for damages nor their notification of defects.
II.3. The regulation according to §447BGB (German Civil Code) also applies to the forwarding by W&L if the place of performance is the place of delivery and if the products are delivered by W&L. A transport insurance policy will only be taken out on explicit instruction and at the expense of the customers.
II.4. Dates named in the customer's order or in W&L's quotation or confirmation of an order are generally noncommittal. W&L is only liable for exceeding dates and terms if those are explicitely named and clearly emphazised as fixed dates in the contractual agreements and if it is provable that the delay has been W&L's fault.
II.5. In case of damage or delay in the delivery beyond the responsibility of W+L during the transport to the customer, W&L has no obligation to assume liability for the acts of another person and for damages.The burden of proof for any responsibility lies with W&L's customer. In this case the customer can only demand an assignment of possible claims that are due to W&L against the carrier or the person responsible for the delay or damage.
II.6. If the customer provides test objects, data or other submittals for W&L, he must ensure and guarantee that these objects are free of third party rights (esp. copyrights), or that the licence has been presented that is required for the completion of the task by W&L. W&L is not obliged to make inquries referring to this, or to investigate if the requirements are met. Should a third party still make or assert a claim for right infringements against W&L, the customer is obliged to ward off these rights, if necessary by employing a lawyer and to pay and reimburse all claims assigned to W&L. Should a third party take legal action against W&L, the customer must also bear the costs for this legal dispute in the form of an advance payment and reimbursement.
II.7. Objects or data provided by the customers remain their property. W&L is not obliged to keep them especially safe. While these objects /data are in the company's possession, it is only liable for gross negligence or / and intentional damage.
II.8. Prices for single items of an offer by W&L are only valid if a full order is placed for this offer. The same applies to standard prices named in the offer that are only valid in case the offered quantity is accepted.
II.9. W&L is not committed to investigate the suitability of offers or orders.
II.10. The prices published by W&L on the internet on www.weberleucht.com/AGB are generally considered to be contractually agreed.
II.11. The contract parties are committed to comprehensively protect all business secrets that have become known to the contract parties involved, especially procedures and /or developmental outputs as well as documents. This commitment is still binding after termination of the contract. Possibly it must be imposed on third parties involved in the fulfillment of the contract.
III. Special agreements
III.1. The customer receives only one original of the documents drawn up by W&L (for. ex. test reports, expert opinions, certificates). If the customer demands more copies, each copy is to be paid separately. After two years at the latest, the customer can not expect to receive further copies.
III.2. Documents (for. ex. test reports, expert opinions, certificates) drawn up by W&L are especially subject to copyright. The customer is not allowed to copy them, not even in extracts. The documents must only be used for the contractually agreed purpose. Each publication that has not been contractually agreed upon before is especially forbidden. Certificates alone are meant for publication in any case, but not any underlying test results. Every deviation of this condition must be previously agreed upon in writing.
III 3. The customer must guarantee that his provided samples (materials or other) are in a condition that shall answer the purpose of the contract awarded and shall allow necessary examinations and tests without additional expenses. He must also guarantee that the samples shall present no indistinguishable risk for staff members or objects.
III.4. Samples (materials or other) provided by the customer are normally consumed during the process of fulfilling the order. The customer has to collect possible residual remnants at his own expense after notification about the completion of the work by W&L within two months at the latest. After this period has expired, W&L can take the remnants to material recycling at the expense of the customer.
III.5. W&L works in its own responsibility together with its own specialists meeting the specific requirements and it has its own work equipment. Without the customer's assent, W&L can entrust other competent (testing) laboratories with orders in particular cases; these must then be committed to W+L's obligations.
III.6. What kinds of services W&L has to perform, especially within the scope of services listed below, primarily arises from the written documents underlying the order.
III.7. Laboratory services are aimed at drawing up test reports, expert opinions and certificates. Test reports solely indicate measurement results, thus, they do not include in particular any interpretation of the measurement results. In order to answer concrete issues, for example the clarification of complaints, it is required to place an order for an expert opinion. The customer himself must ask and specify the question needing clarification. W&L is not responsible for the preliminary clarification of the questions that need to be answered. The customer is held responsible for ambiguities, meaning in particular that he must bear any possible costs caused by them, or that he cannot complain about uncertainties in the expert opinion resulting from these preliminary ambiguities.
If statements for advertising purposes are to be made and/or if W&L shall guarantee for statements about product characteristics, it is required to order an expert opinion aimed at that.
Test reports, expert opinions and certificates are drawn up on the basis of the named regulations, norms or specifications. They only refer to the samples /dates hereto provided by the customer.
III.8. Assignments aimed at research are not based on performance. W&L does not guarantee success, the remuneration that is to be paid is not determined by success
or the achievement of a certain goal. The customer knows that research assignments can be finished without a positive outcome despite considerable effort and cost.
III.9. Trainings/events take place in locations provided by W&L. The details, prices in particular, are shown in the specific programme of events. Registration is binding for the customer up to the date mentioned in the programme (so that W&L can guarantee the required number of participants). Any registration can only be cancelled after that date. The training contract is realized by W&L's written acceptance of the valid registration, in particular by sending the invoice. If a customer does not attend a properly executed training/event or individual parts of it, there is no right to reduce the participation fee. The customer can assign the right to participate in writing to an alternative participant who must be mentioned by name.
W&L is entitled to cancel trainings/ events in case of force majeure and/ or sickness of the instructor. In the latter case, however, W&L is entitled to name a qualified replacement instructor. Participation fees related to cancelled parts of the training/ event are repayed.
IV. Reservation of title
IV.1. Documents/ products delivered by W&L remain W&L's property until full payment.
IV.2. If W&L delivers documents/products to customers who are not consumers according to §13 BGB (German Civil Code) these will remain W&L 's property until all contractual financial obligations between the customer and W&L will be fulfilled.
IV.3. If W&L loses its retained property totally or in parts, it is agreed that the customer assigns all claims to W&L that he purchases contractually for the disposition of the documents/ products, or that he receives otherwise instead of the goods. W&L is herewith accepting this assignment.
IV.4. W&L authorizes the customer to collect assigned claims for W&L's invoice in his own name. This direct debit authorization can be retracted if the customer does not properly meet his financial obligations towards W&L. In the latter case the customer is immediately obliged to provide all information necessary for the collection of the claims on W&L's demand.
IV.5. The customer keeps retained property for W&L free of charge. Without undue delay the customer must inform W&L about seizures or other third party intervention, so that W&L can enforce its rights resulting from §§771 et seq. ZPO (German Code of Civil Procedure); should reimbursement of costs by third parties be not successful in this case, the customer must reimburse the arising costs for W&L.
IV.6. The customer is obliged to immediately surrender objects of W&L's retained property if he is in delay of payment to(wards) W&L, or if he acts in a culpable way in breach of contract otherwise. In this case the customer is obliged to provide all information required for the enforcement of W&L's ownership rights.
IV.7. W&L commits itself to release securities on the customer's request inasmuch as their value exceeds W&L's secured claims towards the customer for more than 10%.
V. Set-off/ Right of retention/assignment
V.1. The set-off with counter claims of the customer against claims of W&L is excluded for all conceivable cases, unless the counterclaims are undisputed by W&L or have been legally established.
V.2. The customer's right of retention against claims of W&L is limited to claims of the same contractual relationship. In case of lasting supply relationships the contractual relationship is the specific delivery/ service/project.
V.3. The assignment of claims of the customer against W&L is only possible with a previously written (§126 BGB [German Civil Code]) approval by W&L. Suppliers are entitled to assign their claims from delivery and service for financing purposes.
VI.1.The limitation period for customer rights arising from product defects against W&L is 1 (in words:one) year; this does not apply to customers being consumers according to §13 BGB (German Civil Code).
VI.2. Rectification of defect and other warranty works are done at the place of performance, in case of doubt at the seat of W&L. If the customer has taken the documents/products to a different place than the place of performance, W&L is not obliged to render services there; the same also applies to a place different from the place of delivery as far as W&L would have been obliged to render services there. This does not apply if there is a previously written (§126 BGB [German Civil Code]) and binding customer warrant to pay the travelling expenses of staff members from the seat of W&L, including subsistence allowance and travelling time, and as far as this can be reasonably expected from W&L and/or as far as the services can be rendered at this place at all.
VI.3. Principally there are no further claims to make.
VII. Liability regulations
The liability of W&L and its staff members and organs as well as its vicarious agents is limited according to the following regulations, excepting damage or harm to life, body or health:
VII.1. The above named parties are only liable for damage caused by intention and gross negligence.
VII.2. The above named parties are not liable for indirect damage, unless explicitly agreed otherwise in writing (§126 BGB [German Civil Code]).
VII.3. The above named parties are liable for possible claims due to slight negligence only for a sum up to 10 % of the invoice amount of the specific contractual agreement (see V2. clause 2).
VII.4. Apart from that, the above named parties are liable to a maximum of the remuneration sum of the transaction (see V2. clause 2) to be due to W&L concering the transaction the customer is asserting a claim for.
Irrespectively of that, W&L has taken out a professional liabilitiy insurance to cover possible claims for damages. This provides the following amounts covered:
for personal injury € 3000,000 (three million),
for damage to property € 3000,000 (three million),
other damages € 3000,000 (three million).
The insurance contract is available to the customer for inspection. The liability of W&L is limited to the scope of this insurance.
VIII. Termination of the business relationship
VIII.1. If the customer exceeds the agreed period for payment, if he is in default with his payment, or if he violates contractual commitments otherwise, W&L can withdraw from the contract or terminate it extraordinarily; in case of several contracts this applies to all existing contracts, if there are essential culpable contract violations, in particular, if there are outstanding payments from all contracts of more than 10% of the sum of all claims of W&l. In this case W&L is entitled to call in all security rights as well.
VIII.2. In the presence of the prerequisites according to item VIII.1., W&L can subsequently demand advance payment for services that are still to perform, even without outstanding payments of at least 10% of the sum of all claims.
IX. Applicable law /jurisdiction
IX.1. All legal relations between W&L and customers are governed exclusively by the law of the Federal Republic of Germany.
IX.2. For all legal disputes the seat of W&L is the exclusive jurisdiction (Local and Regional Court Fulda, as well as higher instances).
IX.3. Items VIII.1 and VIII.2 apply insofar as the customer is a merchant, a legal entity under public law or a special fund under public law, or if the customer has no inland place of jurisdiction and if the agreement is confirmed in writing.