General Terms and Conditions
General Terms and Conditions of Business and Delivery for Hardware and Software as well as Technical Services of Wiest Aktiengesellschaft, Siemensstr. 4, 86356 Neusäß, Germany.
V3.01, January 26th 2021
1. General, Validity
- Wiest AG produces and supplies measuring systems (hardware) and related software. In addition, it provides technical services - primarily in the field of measurement of robot systems.
- These General Terms and Conditions of Business and Delivery shall apply to all contracts concluded between Wiest AG and the Purchaser as well as to all other agreements made within the scope of the business relationship.
- Our general terms and conditions of business and delivery shall apply exclusively. General terms and conditions of business as well as general terms and conditions of purchase of the Purchaser shall expressly not become part of the contract, even if they are not expressly objected to by Wiest AG.
2. Conclusion of contract and scope of services
- All offers are subject to change and non-binding.
- Contracts shall only be concluded with Wiest AG upon written confirmation or by delivery and performance. The written order confirmation shall be decisive for the scope of delivery/service.
- Information provided by Wiest AG on the subject matter of the delivery or service (e.g. weight, dimensions, utility values, load-bearing capacity, tolerance and technical data) as well as representations thereof (e.g. drawings and illustrations) shall only be approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics.
- All plans and technical documents handed over to the Purchaser shall remain the exclusive property of Wiest AG. All copyrights and other industrial property rights shall remain reserved. Without written consent, these documents may not be used for purposes not related to the contract, in particular they may not be reproduced or made accessible to third parties. They shall be returned immediately upon request.
3. Terms of payment and prices
- All invoices of Wiest AG shall be due and payable within 30 days from the date of invoice. The date of receipt of payment by Wiest AG shall be decisive. Upon expiry of this period, the Purchaser shall be in default of payment. In the event of default, Wiest AG shall be entitled to withhold further deliveries and services and to demand advance payments for further partial deliveries or services. In the event of default in payment by the Purchaser, Wiest AG shall be entitled to charge interest at a rate of 9% above the respective base interest rate.
- The Purchaser shall only be entitled to set-off against the purchase price or other claims if the counterclaims are acknowledged by Wiest AG or have become res judicata.
- In the case of contracts which provide for delivery or performance only for a period, which is later than two months after conclusion of the contract, Wiest AG reserves the right to change prices accordingly if, after conclusion of the contract until performance of the contract, cost increases or cost reductions occur, in particular due to collective bargaining agreements or increases in the price of materials. These shall be proven to the Purchaser upon request.
- All prices are exclusive of the respective statutory value added tax, i.e. they are net prices. They shall include the necessary packaging material, unless otherwise stipulated in the contractual agreement.
4. Delivery and shipment (for delivery services)
- All delivery dates stated by Wiest AG are non-binding delivery dates unless a delivery date is expressly agreed in writing. The commencement of the delivery period stated by Wiest AG shall be subject to clarification of all technical issues. Dates for the provision of technical services by Wiest AG shall be determined by the responsible project engineer of Wiest AG.
- Wiest AG shall be entitled to make partial deliveries.
- If the Purchaser requests changes or additions to the order after the order has been placed, or if circumstances arise which make it impossible for Wiest AG to meet the delivery date, although Wiest AG is not responsible for these circumstances, the delivery date shall be postponed by a reasonable period of time. This shall also apply to force majeure. During this extension, Wiest AG shall not be in default.
- If Wiest AG is unable to meet binding delivery deadlines for reasons for which Wiest AG is not responsible (e.g. non-availability of a service, Purchaser's requests for changes), Wiest AG shall inform Purchaser thereof without undue delay and at the same time notify Purchaser of the expected new delivery deadline. If the Service is also not available within the new delivery period, Wiest AG shall be entitled to withdraw from the contract in whole or in part; in this case, Wiest AG shall immediately refund any consideration already paid by Purchaser.
- If Wiest AG is culpably unable to meet an expressly agreed deadline or is in default for other reasons, the Purchaser shall grant Wiest AG a reasonable grace period - commencing on the date of receipt by Wiest AG of the written notice of default. The Purchaser may withdraw from the contract after unsuccessful expiry of the grace period. The withdrawal must be made in writing. Clause 13 shall remain unaffected.
- Place of performance shall be the works of Wiest AG. Delivery shall be ex works of Wiest AG and thus at the risk of the Purchaser, unless otherwise agreed in individual cases. The costs of shipping and transport insurance shall be borne by the Purchaser, whereby the choice of the shipping route and the shipping method shall be at the discretion of Wiest AG.
- If Wiest AG is exceptionally obliged to deliver the goods to the Purchaser's location, the risk of accidental loss and accidental deterioration of the delivery item shall pass to the Purchaser upon handover to the forwarder, carrier or other transfer agent, even if the costs of shipment are borne by Wiest AG.
- The Purchaser is obliged to inspect the goods immediately upon arrival and to notify Wiest AG in writing without delay of any visible transport damage as well as any damage to the packaging. Concealed damage shall be reported immediately upon discovery. Claims for defects shall be subject to the Purchaser's compliance with the statutory obligations to give notice of defects and to inspect the goods (§§ 377, 381 HGB).
- If acceptance is required, this shall be decisive for the transfer of risk. It must take place immediately on the date of delivery, at the latest after Wiest AG has notified the Purchaser that the goods are ready for acceptance. Purchaser may refuse acceptance only in the event of a material defect. Acceptance shall be deemed to have taken place if the Purchaser fails to accept the performance within a reasonable period of time set by Wiest AG, although it is obliged to do so.
- The risk of accidental loss and deterioration shall pass to Purchaser even if Purchaser is in default of acceptance of the performance.
- If Wiest AG loses its claims against the insurance company or the sub-supplier due to the omission of this obligation, the Purchaser shall be liable for all costs resulting therefrom.
5. Force Majeure
- Force majeure means the occurrence of an event or circumstance which prevents a party from performing one or more of its obligations under the contract, if and to the extent that the party affected by the hindrance proves that: such hindrance is beyond its reasonable control, it was not reasonably foreseeable at the time the contract was entered into, and the effects of the hindrance could not reasonably have been avoided or overcome by the party affected.
- Cases of force majeure shall be deemed to exist in particular in the event of fire damage, floods, civil wars, terrorist attacks, strikes, lawful lockouts and epidemics - including epidemics and pandemics and insofar as a level of risk of at least "moderate" is defined by the Robert-Koch-Institute.
- A party affected by this shall be released from its obligation to fulfill its contractual obligations for the duration and to the extent of the impact from the time at which the impediment makes it impossible for it to provide the service, provided that this is notified immediately. If the notification is not made without delay, the release shall take effect from the time when the notification reaches the other party. If the effect of the asserted impediment or event is temporary, the consequences just set forth shall apply only as long as the asserted impediment prevents the performance of the contract by the affected party.
- The contracting parties shall be obliged, within the bounds of what is reasonable, to pass on the necessary information without delay, to explain the reasons for the impediment to performance and to adjust their obligations to the changed circumstances in good faith.
- If the duration of the asserted impediment results in the contracting parties being essentially deprived of what they could reasonably expect by virtue of the contract, the respective party shall have the right to terminate the affected contract by notifying the other party within a reasonable period of time. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment has exceeded 120 days.
- The Purchaser may assign its rights arising from a business relationship with Wiest AG only with the written consent of Wiest AG.
7. Retention of title, Insurance (for delivery services)
- The delivered goods shall remain the property of Wiest AG until full payment of all claims of Wiest AG arising from the business relationship with the Purchaser, both in principal and in incidental matters. The Purchaser is obligated to properly insure the items subject to Wiest AG's retention of title (i.e., theft, fire, water and low-voltage insurance) and to provide evidence of such insurance to Wiest AG upon request. In the event of damage, Purchaser's insurance claim shall be deemed to have been assigned to Wiest AG to the amount of the outstanding balance.
- The Purchaser shall not be entitled to dispose of the items subject to retention of title. In the event of seizure or attachment, Purchaser shall immediately notify Wiest AG in writing and shall immediately inform third parties of Wiest AG's retention of title in an appropriate manner.
- In the event that the Purchaser nevertheless sells the delivery items and Wiest AG should approve such sale, the Purchaser shall assign to Wiest AG by way of security all claims against its customers already upon conclusion of the contract. Wiest AG accepts the assignment. The Purchaser shall be obligated to provide Wiest AG with all information necessary for the assertion of such rights and to perform the necessary acts of cooperation.
- The processing and transformation of the Reserved Goods by the Purchaser shall always be carried out on behalf of Wiest AG. If the Retained Goods are processed, firmly connected or mixed with other items, Wiest AG shall acquire co-ownership of the new item in proportion to its value to the other processed items. If the combination or mixing is carried out in such a way that the Purchaser's item is to be regarded as the main item, the Purchaser shall transfer co-ownership to Wiest AG on a pro rata basis.
- Wiest AG undertakes to release the securities to which it is entitled upon written request to the extent that the realizable value of the security exceeds the claims to be secured by more than 10%.
8. Technical Services, Obligations of the Customer
- The Purchaser shall cooperate, to the extent necessary, in the provision of technical services. It shall make available to Wiest AG all information required for the performance of the service and the equipment to be examined together with data as well as qualified employees. The Purchaser shall permit the use of premises, hardware, software and telecommunications equipment to the extent necessary for the provision of the Service by Wiest AG.
- If the Purchaser does not or only insufficiently comply with its duties to cooperate and if, as a consequence thereof, the provision of the services by Wiest AG is delayed, Wiest AG shall not be responsible therefor. Wiest AG shall be entitled to invoice any additional expenses incurred as a result thereof at the current prices.
- In the case of individually produced constructions for the contracting party, which depend on the contracting party's individual circumstances on site and which consequently fall within the contracting party's sphere of control and organization, Wiest AG shall not be subject to any duty of inspection or liability as to whether the construction or the measurement can actually be used in the form contained in the order profile or can be carried out in the planned manner. If deviations or defects of the planned construction therefore fall within the sphere of the contractual partner, Wiest AG shall not assume any liability therefor. Clause 4.4 shall apply accordingly.
- For technical services within the scope of the contract, the Purchaser shall appoint an employee who shall supervise the performance of the contractual service and be the responsible contact person for all questions related to the execution of the contract.
- Wiest AG shall select its responsible employees on the basis of competence and proximity to performance.
- Wiest AG may also commission sufficiently qualified third parties to perform the agreed service. The Purchaser shall be informed of this in advance; justified objections for good cause by the Purchaser against the transfer to the third party shall be taken into account by Wiest AG to the extent reasonable and possible.
9. Software, obligations of the purchaser
- The Purchaser shall take reasonable precautions in the event that the Software does not function properly in whole or in part. He shall thoroughly test the software for its usability for the purpose intended by him before he uses it operationally. Furthermore, he will back up his data according to the state of the art. He shall ensure that the current data from data stocks held in machine-readable form can be reproduced with reasonable effort
- The Customer shall take appropriate measures to protect the Software from unauthorized access by third parties.
10. Liability for defects in hardware
- Wiest AG and the Purchaser agree that statements and descriptions of the Hardware contained in the manual and/or in the price list do not constitute a warranty of specific characteristics.
- The warranty period shall be twelve months and shall commence on the date of delivery. The Purchaser shall immediately notify Wiest AG in writing of any defects occurring during the warranty period. The warranty does not cover the removal of defects caused by normal wear and tear, external influences or operating errors. The warranty shall not apply to the extent that the Purchaser modifies devices, elements or additional equipment itself or has them modified by third parties without the consent of Wiest AG, unless the Purchaser furnishes proof that the defects still in question have not been caused either in whole or in part by such modifications and that the rectification of defects is not impeded by the modification.
- The Purchaser shall set Wiest AG a reasonable deadline for subsequent performance. All Services which have a material defect the cause of which already existed at the time of the transfer of risk - this must always be proven by the Purchaser - shall, at the option of Wiest AG, be repaired, redelivered or provided again free of charge. Wiest AG may refuse subsequent performance as a whole if it can only be carried out at disproportionate cost to Wiest AG. Wiest AG shall not be liable for defects of which the Purchaser is aware at the time of the conclusion of the contract or is not aware due to gross negligence (§ 442 BGB).
- Wiest AG shall be entitled to make a reasonable number of attempts to effect subsequent performance for the same or a directly related defect within the period of grace to be set by Purchaser in each case. Withdrawal due to an insignificant defect shall be excluded.
- If Purchaser has asserted a warranty claim against Wiest AG and if it turns out that either there is no defect or the asserted defect does not obligate Wiest AG to provide a warranty, Purchaser shall reimburse Wiest AG for the expenses incurred by Wiest AG, provided Purchaser is responsible for the assertion of the warranty claim due to gross negligence or intentional misconduct.
11. Liability for defects in software
- If the delivery also includes the provision of software, the Purchaser shall acquire a non-exclusive, temporally and locally unlimited, non-sublicensable, non-transferable right of use to the software, limited to the respective number of computer installations or technical equipment for internal operational purposes of the Purchaser, as well as for the purpose of the contract. Further restrictions can result from the individual contract, as well as the accompanying documentation of the software. In all other respects all rights are reserved. These provisions shall also apply in particular to new versions, updates, upgrades and patches of the Software delivered in the future.
- Wiest AG and the Purchaser agree that statements and descriptions of the Software contained in the manual or the price list do not constitute a warranty of specific characteristics.
- The Purchaser shall inspect the Software immediately upon delivery and shall notify the Seller in writing of any obvious defects without undue delay.
- Wiest AG warrants for a period of twelve months from the date of delivery that the Software, with respect to its functionality, will substantially and without limitation conform to the purpose of the program description in the accompanying written material as required by the contract.
- If a defect occurs, the defect and its manifestation shall be described in a written notice of defect - as far as possible and reasonable - in such detail that a localization and verification of the defect (e.g. presentation of the error messages) and the exclusion of an operating error (e.g. indication of the work steps) is possible.
- The Purchaser shall set Wiest AG a reasonable deadline for subsequent performance. All those Services which have a material defect the cause of which already existed at the time of the transfer of risk - this must be proven by the Purchaser - shall, at the option of Wiest AG, be repaired, redelivered or provided again free of charge. Wiest AG may also refuse subsequent performance as a whole, if it can only be carried out at disproportionate cost to Wiest AG. Wiest AG shall not be liable for defects of which the Purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB).
- Wiest AG shall be entitled to make a reasonable number of attempts to effect subsequent performance for the same or directly related defect within the grace period to be set by the Purchaser in each case.
- Withdrawal due to an insignificant defect shall be excluded.
- If Purchaser has asserted a warranty claim against Wiest AG and if it turns out that either there is no defect or that the asserted defect does not obligate Wiest AG to provide a warranty, Purchaser shall reimburse Wiest AG for all expenses incurred by Wiest AG, provided Purchaser is responsible for the claim due to gross negligence or intent.
- No liability shall be assumed that the software is suitable for the purposes of the Purchaser and that it will work together with software available at the user's unless an explicit and written warranty has been assumed for this purpose.
- The delivery of manuals and documentation beyond the written material/program description delivered with the software and the user guidance and/or online help implemented in the software, or instruction, shall only be owed if this has been expressly agreed in writing between the parties. In the event of such an agreement, requirements regarding the content, language and scope of a manual and/or documentation shall not be made, and the delivery of a quick reference guide shall be sufficient, unless the parties have agreed on further specifications in writing.
- Updating maintenance of the software shall not be owed subject to any other contractual provision.
12. Defects of title
- In the event of defects of title, the provisions regarding defects of quality, in particular the aforementioned deadlines, shall apply mutatis mutandis.
- Unless otherwise agreed, Wiest AG shall be obligated to provide the Delivery free of industrial property rights and copyrights of third parties only in Germany. If a third party asserts justified claims against the Purchaser due to an infringement of industrial property rights by Deliveries made and used in accordance with the contract, Wiest AG shall only be liable to the extent that the Purchaser immediately notifies Wiest AG in writing of the claims asserted by the third party, does not acknowledge an infringement and Wiest AG retains the right to take all defensive measures and to conduct settlement negotiations.
- Claims of Purchaser for infringement of third-party proprietary rights shall be excluded to the extent that Purchaser is responsible for the infringement of proprietary rights or such infringement is caused by special specifications of Purchaser, by a use not foreseeable by Wiest AG or by the fact that the goods are modified by Purchaser or used in a manner not in conformity with the contract.
- Wiest AG shall not be liable for defects of which the Purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB).
13. Limitation of liability
- Wiest AG shall be liable for intent and gross negligence in accordance with the statutory provisions. This shall also apply to the liability for actions of employees of Wiest AG or for third parties commissioned by Wiest AG.
- In case of slight negligence Wiest AG shall only be liable if an essential contractual obligation is violated. In the event of liability due to slight negligence, such liability shall be limited to such damages which are foreseeable or typical. Liability for injury to life, body and health, under the Product Liability Act and the Federal Data Protection Act shall remain unaffected. It shall also not apply in the event of fraudulent concealment of a defect or the assumption of a guarantee. In all other respects liability is excluded.
- In the event of a claim against Wiest AG under warranty or liability, contributory negligence on the part of the Purchaser shall be taken into account appropriately, in particular in the event of insufficient error messages or insufficient data backup.
- Insofar as the liability of Wiest AG is excluded or limited, this shall also apply to the personal liability of Wiest AG's employees, representatives and vicarious agents.
- Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality, in the event of only insignificant impairment of usability, in the event of natural wear and tear or damage occurring after the transfer of risk as a result of unsuitable or improper use, faulty or negligent handling, faulty assembly, excessive stress or as a result of special external influences which are not assumed under the contract.
14. Property rights
- If Wiest AG has to deliver according to drawings, models, samples or using parts provided by the Purchaser, the Purchaser shall be responsible for ensuring that the property rights of third parties in Germany and abroad, in particular in the country of destination of the goods, are not infringed thereby.
- The Purchaser shall indemnify Wiest AG upon first written request against any claims of third parties based on an infringement of an Intellectual Property Right and shall compensate Wiest AG for any damage incurred. The obligation to indemnify relates to all expenses necessarily incurred by Wiest AG as a result of or in connection with the claim by a third party.
- If Wiest AG is prohibited from manufacturing or delivering by a third party invoking a property right belonging to it, Wiest AG shall be entitled - without examining the legal situation - to suspend work until the legal situation has been clarified by the Purchaser and the third party. If the continuation of the order is no longer reasonable due to the delay, Wiest AG shall be entitled to withdraw from the contract.
15. Export regulations
- Without the express consent of Wiest AG, Purchaser shall not be permitted to export the goods purchased from Wiest AG to countries outside the EC.
- Wiest AG and the Purchaser mutually undertake to keep all business and trade secrets of the other party confidential for an unlimited period of time and not to disclose them to third parties or to exploit them in any way. The documents, drawings and other information received by the other contracting party on the basis of the business relationship may only be used by the latter within the scope of the respective purpose of the contract.
17. Evidence Clause
- Data stored in electronic registers or otherwise in electronic form at Wiest AG shall be deemed admissible evidence for the proof of data transfers, contracts and executed payments between the contracting parties.
- Legally relevant declarations and notifications of the Purchaser with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, remain unaffected.
18. Final Provisions
- Should individual provisions of these general terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the invalid provisions shall be replaced by the provision that comes closest to the intended purpose.
- Collateral agreements are not made. Subsidiary agreements, amendments or supplements to the contracts concluded with Wiest AG, as well as legally relevant declarations to be made by the Purchaser after conclusion of the contract, must be in writing in order to be effective.
- The place of jurisdiction shall be, to the extent permitted by law, the registered office of Wiest AG (principal place of business) in the Federal Republic of Germany. German law shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (cisg).
- In the event of problems of interpretation and linguistic discrepancies between the foreign-language and the German version, the German version of the standard terms and conditions will be binding.