Subject to other individual contractual agreements and deviating software conditions (hereinafter together referred to as ”Other Agreements”), these terms and conditions of Welotec GmbH (hereinafter referred to as “Welotec“) shall apply to all sales, deliveries and services provided by Welotec to entrepreneurs within the meaning of Section 14 of the German Civil Code [Bürgerliches Gesetzbuch, BGB], to legal persons under public law or special funds under public law within the meaning of Section 310 in conjunction with Section 14 BGB (hereinafter referred to as “Customer”). The inclusion of the Customer’s own conditions is herewith objected to, unless their validity was expressly consented to. These terms of sale and delivery shall also apply exclusively if Welotec delivers to the Customer without special reservation despite being aware of conflicting or deviating conditions of the Customer.
T&C OF WELOTEC
Terms and Conditions
Conclusion of contract
- All offers and price lists, also in Welotec’s online shop, are not binding (so-called “invitatio ad offerendum”) as long as they do not become part of a contractual agreement. The product presentations in the online shop serve to submit a purchase offer. By clicking on the “order” button, the Customer submits a binding purchase offer. A purchase agreement is only concluded upon confirmation of the order by Welotec.
- If Welotec has agreed special conditions, these shall not generally apply to simultaneous and future contractual relationships with the Customer.
Prices and terms of payment
- The prices stated by Welotec are to be understood net plus statutory German VAT, packaging and shipping costs, insurance (in particular transport insurance), customs duties and charges. Transport costs will be charged separately.
- Unless otherwise agreed, the purchase price is payable within 30 calendar days of the invoice date without deduction.
- Payment shall be deemed received once the respective amount is credited to one of Welotec’s accounts. In case of default of payment, Welotec is entitled to claim default interest in the amount of 10 % above the respective base rate. The other statutory rights of Welotec in case of default of payment on the part of the Customer shall remain unaffected by this. If invoices are overdue, incoming payments shall first be offset against possible costs and interest, then against the oldest claim.
- Bills of exchange are only accepted after prior explicit agreement and then only by way of provisional performance and subject to their being discountable. All expenses incurred by Welotec in this connection shall be reimbursed by the Customer.
- In the event of unforeseeable cost increases (e.g. currency fluctuations, unexpected price increases by suppliers etc.), Welotec is entitled to pass on the price increase to the Customer.
Foreign business transactions
- With regard to deliveries abroad, standard trade terms (e.g. “cif”, “ex work”, “fob”) which have become part of the contract according to the aforementioned principles, shall be exclusively interpreted in accordance with the “International Commercial Terms” (“Incoterms”) published by the International Chamber of Commerce in their latest applicable version. Insofar, the content of the respective Incoterms shall become part of the contract.
- The prices stated by Welotec generally do not include consular fees, import duties or other duties/fees charged due to regulations of the country of destination (cf. also the simultaneously applicable clause 3.1). In the event that other contractual agreements have been made by way of exception, the charge included in the price is adjusted to the respective development of charges since the agreement.
- Welotec shall only be obliged to comply with the foreign regulations on packaging, weighing and customs if the Customer has previously provided exact details thereof.
Delivery and shipping terms as well as passing of risk
- If the Customer purchases more than one item from different offers, Welotec shall be entitled, for technical reasons, not to deliver the items in one consignment. Furthermore, Welotec is entitled to make partial deliveries, even if fixed dates have been agreed, as far as this is reasonable for the Customer. If partial deliveries are permitted, Welotec shall also be entitled to issue partial invoices.
- Delivery of the objects of performance is regularly made by shipment, with the transport route and shipping method being decided by Welotec. Delivery times/dates stated are generally non-binding, unless Welotec explicitly confirms that the mentioned time/date is binding.
- In the case of sale to destination according to buyer’s instructions, the risk of accidental loss and accidental deterioration of the objects of performance shall pass to a suitable transport person at the moment the objects of performance are handed over to this transport person at Welotec’s place of business. This shall also apply if Welotec bears the costs of transport. If Welotec is responsible for assembly and installation, the risk shall pass to the Customer upon completion of assembly and installation and handover.
- If a delivery to the Customer is not possible, for example, because the objects of performance do not fit through the Customer’s front door, door or stairway, or because the Customer is not present at the stated delivery address although the time of delivery was indicated to the Customer in a reasonable period of time, the Customer shall bear the costs of the unsuccessful delivery.
- If the dispatch of the delivery is delayed for reasons for which the Customer is responsible, the risk shall pass to the Customer already upon notification of readiness for shipping. The Customer shall bear any storage costs incurred after the passing of risk.
Customer’s obligations to cooperate
- The timely provision of services by Welotec requires the Customer’s cooperation. This includes the cost-free provision of staff as well as structural installations and workspaces that are required for the support. In particular, the Customer undertakes to provide the following at its own expense and in a timely manner:
- all earthwork, construction work and other different ancillary work, including the necessary skilled and unskilled labour, construction materials and tools,
- the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and lubricants,
- energy and water at the site of use, including connections, heating and illumination,
- suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools etc., and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances; furthermore, the Customer shall take all measures it would take for the protection of its own possessions to protect the possessions of Welotec and of the erection personnel at the site,
- protective clothing and protective devices needed due to particular conditions prevailing on the specific site.
- Before the erection work starts, the Customer shall unsolicitedly make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
- Prior to assembly or installation, the materials and equipment necessary for the work to start must be available on the site of assembly or installation and any preparatory work must have advanced to such a degree that assembly or installation can be started as agreed and carried out without interruption. Access roads and the site of assembly or installation must be level and clear.
- The Customer shall attest to the hours worked by the erection personnel towards Welotec on a daily basis and the Customer shall immediately confirm in written form if assembly, installation or commissioning has been completed.
- During the term of the contract, the Customer shall designate, in writing, a responsible person who possesses all decision-making powers and authorisations necessary for the purposes of implementation of this agreement.
- The Customer has informed itself of the essential functional features of the software and bears the risk of whether the software meets its wishes and needs; before concluding the contract, the Customer has sought advice from Welotec‘s employees or by expert third parties on any questions of doubt.
- The installation of a fully functional hardware and software environment – one that is also sufficiently dimensioned with regard to the additional load from the contractual items – for the contractual items in accordance with the requirements (service description, technical conditions) specified in Annex 1 shall be the exclusive responsibility of the Customer.
- The Customer shall report any defects immediately after their discovery in writing to Welotec. Provided that Welotec employs a ticket system, the Customer has to use this system.
- When reporting a defect, the Customer shall explicitly observe the symptoms that have arisen, the program as well as the system and hardware environment, and report the defect to Welotec in text form by stating any information necessary to remedy the defect, for example the number of users affected, description of the system and hardware environment and, if applicable, simultaneously loaded third-party software and documents.
- The removal of defects requires reproducibility of the defect. The Customer shall support Welotec in the removal of defects in every way (within the scope of its possibilities and to the best of its ability), in particular by providing qualified staff to investigate the cause of the defect and all necessary documents. This also includes the making available of files and, where required, the related databases.
- The Customer shall observe the instructions for the installation and operation of the software provided by Welotec.
- The Customer shall (during the normal office hours of the Customer) provide access to the computers on which the program to be installed or maintained is stored and/or loaded to employees or subcontractors assigned by Welotec to perform the services. If the defect also affects other computers, access shall be provided to these computers as well. Access can also be provided by way of remote access.
- The Customer shall take adequate measures in the event that the software does not work properly in whole or in part (e.g. through daily data backups, fault diagnosis, regular checking of data processing results).
- Unless the Customer expressly states otherwise in advance, Welotec may assume that all of the Customer’s data with which Welotec may come into contact are backed up.
- The Customer shall bear any disadvantages and additional costs arising from a breach of these obligations.
- If Welotec is of the opinion that the Customer does not fulfil a duty of cooperation or provision as stipulated in the contract, Welotec shall inform the Customer about this and shall grant the Customer an adequate grace period to fulfil its duty of cooperation or provision; if necessary, Welotec shall inform the Customer of any adverse consequences of its failure to fulfil its duty of cooperation or provision as stipulated in the contract within the set grace period. As long as a duty of cooperation or provision has not been fulfilled as stipulated in the contract, Welotec shall be fully or partially exempt from its respective service obligation to the extent that Welotec depends on the respective cooperation or provision. Welotec shall not be responsible for any impairment of service caused by the Customer‘s failure to fulfil its duty of cooperation/provision as stipulated in the contract.
- Additional costs incurred by Welotec due to the non-fulfilment of the duties to cooperate and provide information as stipulated in the contract can be separately invoiced by Welotec. Potential further claims of Welotec shall remain unaffected.
- Compliance with the delivery periods shall require the timely receipt of all documents to be provided by the Customer, required permits and approvals, in particular of plans, as well as the observance of the agreed terms of payment and other obligations by the Customer. If these conditions are not fulfilled in time, the delivery periods shall be extended appropriately; this shall not apply if Welotec is responsible for the delay.
- In the event of force majeure, Welotec is entitled to postpone the delivery for the duration of the hindrance or to withdraw fully or partially from the contract, without this giving rise to any claims against Welotec. Force majeure within the meaning of this contract shall cover all unforeseeable events or such events that – even if they were foreseeable – are beyond Welotec’s control and whose effects on the performance of the contract cannot be avoided by reasonable efforts by Welotec. These include, among other things, war (whether declared or not), war-like conditions, riot, blockade, embargo, sabotage, orders of executive authorities, energy supply problems, epidemics, fire, explosion or a general shortage of material that was unknown until then.
- If non-compliance with delivery periods is due to
- virus and other attacks by third parties on Welotec’s IT system, provided that such attacks occur although due diligence was exercised regarding the protection measures,
- obstacles posed by German, US-American or any other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which Welotec is not responsible,
- late or incorrect delivery to Welotec, or
- power failure, the delivery
periods shall be extended appropriately.
- If force majeure continues for more than three months without interruption, both parties shall be entitled to withdraw from the contract immediately.
- In the event of delay of Welotec, the Customer shall be obliged, upon Welotec’s request, to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery or whether it still insists on the service. If Welotec comes into delay, the Customer – insofar as it substantiates that it suffered a loss from this – can demand compensation of 0.5 % for each completed week of the delay, but in no case more than a total of 5 % of the price of that part of the deliveries which could not be put to the intended use because of the delay.
- In the event of a delay in service, the Customer shall only be entitled to withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay. If the Customer legitimately claims damages or reimbursement of expenses instead of the service due to the delay, it shall be entitled to demand 0.5 % of the price for that part of the service which cannot be used due to the delay for each completed week of the delay, but in no case more than a total of 5 % of this price.
- In the event of the Customer’s economic inability to fulfil its obligations towards the supplier, Welotec can withdraw from the contract upon the unsuccessful expiry of a reasonable period for performance. This shall also apply if the Customer files for insolvency. Section 112 of the German Insolvency Code [Insolvenzordnung, InsO] shall remain unaffected. The Customer shall inform Welotec in writing in good time of an impending insolvency.
- If assembly, installation or commissioning is delayed due to circumstances for which Welotec is not responsible, the Customer shall bear the reasonable costs for waiting time and any additional travel required by Welotec or the installation personnel.
- If dispatch or delivery is delayed at the Customer‘s request by more than one month after notification of readiness for dispatch, the Customer can be charged storage costs for each additional month or part thereof in the amount of 0.5 % of the price of the objects of delivery, but in no case more than a total of 5 %. The contracting parties have the right to provide evidence of higher or lower storage costs.
- The contracting parties have the right to provide evidence of higher or lower damages.
- The above limitations of liability shall not apply if a default was due to gross negligence or intent on the part of Welotec.
Retention of title
- Welotec retains title to the contractual services until full payment of the due remuneration. Furthermore, Welotec retains the ownership until all claims arising from the business relationship with the Customer have been fulfilled.
- Items subject to retention of title or rights may neither be pledged nor transferred by way of security by the Customer. The Customer shall only be permitted to resell such items in the normal course of business as a reseller under the condition that the Customer has effectively assigned to Welotec its claims against its buyers in connection with the resale and the Customer transfers ownership to its buyer subject to the condition of payment. Upon conclusion of the contract, the Customer assigns its claims against its buyers in connection with such sales by way of security to Welotec, who hereby accepts this assignment.
- Insofar as the value of Welotec’s security rights exceeds the amount of the secured claims by more than 10 %, Welotec shall release a corresponding share of the security rights at the Customer’s request.
Liability for defects
In the event of material defects and defects of title, Welotec shall be liable as follows:
- An insignificant defect does not cause warranty claims and does not entitle the Customer to refuse acceptance of the contractual items. If part of the contractual items contains significant defects, this shall not entitle the Customer to reject the entire delivery. This does not apply if partial delivery is of no interest to the Customer. Furthermore, payments effected by the Customer may only be retained to an extent which is appropriately proportionate to the occurred defect. If Welotec provides freeware, it shall be liability for defects only to the extent that it has acted with intent or gross negligence.
- Warranty claims do not arise in cases of natural wear and tear or in cases of damages after the passing of risk which are caused by incorrect or negligent treatment, excessive use, unsuitable operating materials, faulty construction work, unsuitable subsoil, or caused by special external influences not covered by the contract, or in case of non-reproducible software errors. If the Customer or a third party carries out improper modifications or maintenance work, no warranty claims can be made for the resulting damages, unless the Customer can prove that the notified defect was not caused by such modifications or maintenance work. Rights and claims due to defects shall be excluded if the objects of performance are used goods.
- Claims of the Customer for subsequent performance and damage compensation due to defects shall be excluded insofar as the claims result from the fact that the object of delivery was delivered to a place other than the contractually agreed place of delivery, unless delivery to the other place had been explicitly agreed upon.
- Welotec has the right to choose between repair or replacement.
- In the case of new objects of performance, the period of limitation for warranty claims is one year after the passing of risk. By contrast, the statutory periods of limitation for claims under a right of recourse pursuant to Section 478 BGB shall remain unaffected; the same shall apply in the event of a wilful or grossly negligent breach of duty on the part of Welotec, of fraudulent concealment of a defect, of liability arising from warranty promises as well as in the case of injury to life, body or health. The statutory regulations regarding suspension of expiry and recommencement of limitation periods shall remain unaffected.
- If the Customer is a merchant within the meaning of Section 1 of the German Commercial Code [Handelsgesetzbuch, HGB], it is subject to the commercial obligation to investigate and give notice of defects according to Section 377 HGB. If the Customer neglects the obligations to give notice specified therein, the objects of performance shall be deemed accepted.
- If subsequent performance is provided in the form of a replacement delivery, the Customer shall be obliged to return the initially delivered objects of performance to Welotec within 30 days. The return of the defective objects of performance shall be notified to Welotec, which will then commission a parcel service of its choice to collect the objects of performance. The parcel shall be accompanied by a delivery note and shall include the reason for the return and the order number, as the objects of performance cannot be allocated otherwise. If this is not the case, Welotec shall not be obliged to accept the returned objects of performance and to reimburse the purchase price.
- If Welotec delivers a defect-free item for the purpose of subsequent performance, Welotec can claim compensation for use from the Customer in accordance with Section 346 (1) BGB. Other legal claims shall remain unaffected.
- The assignment of the Customer’s warranty claims shall be excluded.
- Product and other feature descriptions of Welotec do not define quality or durability guarantees within the meaning of Section 443 BGB. The parties agree that a guarantee declaration within the meaning of Section 443 BGB shall only exist if Welotec makes such declaration in writing using the term “guarantee” and complying with the requirements specified in Section 479 BGB.
Industrial property rights and copyrights; defects of title
- Unless agreed otherwise, Welotec shall only be obliged to render the delivery free of any industrial property rights and copyrights of third parties (hereinafter: Property Rights) solely in the country of the place of delivery. If a third party asserts a justified claim against the Customer due to the infringement of property rights through deliveries provided by Welotec which are used as per contract, Welotec shall be liable to the Customer within the period of time stipulated in clause 10.5 as follows:
- At its own discretion and expense, Welotec shall either obtain a right of use for the deliveries concerned, change them in such a way that the Property Right is not infringed, or replace them. If this is not possible for Welotec under reasonable conditions, the Customer shall be entitled to the statutory rights of withdrawal or reduction.
- Welotec’s obligation to pay damages is based on clause 12.
- The above obligations of Welotec shall only apply if the Customer informs Welotec immediately and in writing about the claims asserted by the third party, does not acknowledge an infringement and if the right to all defensive measures and settlement negotiations is reserved for Welotec. If the Customer stops using the delivery for reasons of mitigation of damage or other important reasons, it shall be obliged to point out to the third party that the discontinuation of use does not constitute acknowledgement of a property right infringement.
- Claims of the Customer shall be excluded insofar as the Customer is responsible for the infringement of property rights.
- Claims of the Customer shall also be excluded insofar as the property right infringement is caused by specific Customer requirements, by an application which was not foreseeable by Welotec, or due to the fact that the delivery is changed by the Customer or used together with products which were not delivered by Welotec.
- In the event of property rights infringements, the provisions of clause 10 shall apply accordingly to the claims of the Customer that are (newly) regulated in clause 12.1.
- In the case of other defects of title, the provisions of clause 10 shall apply accordingly.
- Further-reaching claims or claims other than those regulated in this clause 11 that are asserted by the Customer against Welotec and its vicarious agents due to a defect of title shall be excluded.
- Welotec shall always be liable to the Customer for damages and for the reimbursement of futile expenses
- for any damage caused by Welotec and its legal representatives or vicarious agents through intent or gross negligence
- according to the Product Liability Act and
- for damages arising from injury to life, body or health for which Welotec, its legal representatives or vicarious agents are held responsible.
- In the event of ordinary negligence, Welotec shall only be liable insofar as it has violated an essential contractual obligation. In cases of property damage and financial loss, this liability shall be limited to the contractually typical and foreseeable damage. This shall also apply to lost profits and missed savings. Liability for other more remote consequential damages shall be excluded. Liability according to 12.1.2 shall remain unaffected by this section.
- Welotec shall only be liable for damages arising from a guarantee declaration if this was expressly stipulated in the guarantee. In the event of ordinary negligence, this liability is subject to the limitations stated in clause 12.2.
Secrecy and privacy
- The contracting parties commit themselves to treat all knowledge of confidential information and business secrets (“Business Secrets”) of the respective other party gained within the framework of the initiation and performance of the contract confidential for an unlimited period of time and to use them only for the purpose of performing this contract. Welotec’s Business Secrets also include the contractual items and the services provided in accordance with this contract.
- The Customer shall make contractual items available to employees and other third parties only if this is necessary to exercise the rights of use it has been granted. It shall inform all persons to whom it grants access to the contractual items of Welotec’s rights to the contractual items and the obligation to keep them secret, and shall oblige these persons in writing to maintain secrecy and to use the information only to the extent specified in clause 1 of this contract, unless the persons concerned are, for any other legal reasons, obliged to maintain secrecy, at least to the above extent.
- The above obligations shall not apply to Business Secrets that
- had already been publicly known or available to one contracting party at the time of their disclosure by the other contracting party;
- have become publicly known after their disclosure by one contracting party without the fault of the other contracting party;
- have been made available, after their disclosure by one contracting party, to the other contracting party by a third party in a lawful manner and without any obligation of secrecy or limitation of use;
- have been developed independently by one of the contracting parties, without using the Business Secrets of the other contracting party;
- have to be disclosed according to the law, official decree or court decision – provided that the disclosing party immediately informs the contracting party thereof and supports it in defending itself against such decrees or decisions; or
- insofar as the contracting party is allowed to use or disclose the Business Secrets due to compulsory statutory provisions or due to this contract.
Welotec shall comply with the privacy regulations, in particular if it is granted access to the Customer’s premises or to its hardware or software. Welotec shall ensure that its vicarious agents also comply with these regulations, and in particular that they commit themselves to comply with data secrecy before taking up their duties. Welotec does not intend to process or use personal data on behalf of the Customer. Rather, personal data is only transferred in exceptional cases as a side effect of the contractual services provided by Welotec. Welotec shall treat personal data in accordance with the data protection regulations. If an access by Welotec to personal data cannot be excluded, the Customer shall conclude an agreement with Welotec that corresponds to the requirements of Section 28 of the GDPR.
- If any requirements occur in the course of performance of the service due to specifications or amendments of Welotec’s services and it is not economically reasonable for Welotec to meet such requirements, Welotec shall notify the Customer thereof and of the foreseeable consequences in writing, stating the reasons.
- If contractual regulations are affected by the amendment of a service or a requirement to perform the contract, e.g. remuneration, performance deadlines or acceptance, the parties shall agree in writing to adjust the individual contract as a result of the amendment, taking account of the corresponding additional or lower costs.
- If the current offer contains contradictions that cannot be resolved, the version that is more favourable in Welotec’s opinion shall apply. If there are no specification sheets, those specifications that are necessary to meet the requirements according to the above provisions shall be deemed agreed.
- If Welotec recognises that the offer or the other concepts agreed upon or any other claim of the Customer regarding the performance of the contract is uneconomic, incorrect, incomplete, not clear or objectively not feasible, it shall, irrespective of the above provisions, immediately notify the Customer in writing thereof and of the foreseeable consequences, and shall await the Customer’s decision before it continues the performance of this part of the service. Otherwise, Welotec shall inform the Customer about recent developments and other circumstances that make an amendment of the offer appear economically or technically reasonable.
- Welotec shall have the right to submit proposals for amendments to the services. The Customer shall review such amendments and declare acceptance or rejection of the proposed amendments immediately, at the latest within 14 days after receipt of the proposal.
- If the parties fail to reach an agreement regarding the amendments or proposed amendments within 14 days after the proposal of one party, the original regulations that existed at the time the contract was concluded shall remain unchanged.
Limitation of actions
Claims, with the exception of claims in accordance with clause 10, shall become statute-barred after 3 years from the time of knowledge, but at the latest after 8 years after the agreed deadline for provision of the service. This shall not apply in the case of wilful intent and insofar as the Product Liability Act is applied.
Rights of set-off, retention and assignment
- The Customer shall only be entitled to set-off or retention if the counterclaim is undisputed, has been stated legally binding or is recognised by Welotec.
- The Customer shall be entitled to withhold payments due to defects only to a reasonable extent in relation to the defect, and only if the defect exists beyond any doubt. Clause 10.1 sentence 1 shall apply accordingly.
- The rights and obligations arising from all legal relationships between the parties cannot be assigned to third parties by one contracting party without the prior written consent of the other contracting party.
Collateral agreements and written form
- Verbal collateral agreements do not exist.
- Agreements can only be amended, cancelled or supplemented in writing. This shall also apply to amendments to the written form requirement.
- The law of the Federal Republic of Germany shall apply to all legal relationships of the parties, with the exclusion of the laws on the international purchase of movable goods.
- If the Customer is a merchant, a legal person under public law or a special fund under public law, Welotec’s place of business shall be the exclusive place of jurisdiction for all disputes arising from this contract, unless there is any other mandatory place of jurisdiction. The same shall apply if the Customer has no general place of jurisdiction in Germany or if its domicile or habitual residence is not known at the time the action is filed. The entitlement to appeal to a court at another legal place of jurisdiction shall remain unaffected by this.