General Terms and Conditions
§ 1 Scope and object of the General Terms and Conditions
- These General Terms and Conditions apply to all legal relationships for deliveries and services to be performed by Weilandt Elektronik, which are established between the client – hereinafter referred to as the “Customer” – ?
Weilandt Elektronik GmbH?
Am Neubergsweg 6?
Phone +49 201 109 981 10
?Fax +49 201 109 981 23 ?
– hereinafter referred to as “Weilandt Elektronik.”
- No verbal side agreements exist. Weilandt Elektronik shall notify the Customer in writing of all changes to these General Terms and Conditions, the service specifications and similar. If, in the case of a permanent obligation, the Customer does not respond to the offer submitted by Weilandt Elektronik and/or does not object to it within one month after receipt of the change notice, this shall be deemed an acceptance of the offer, and the changes will become effective, provided that Weilandt Elektronik has expressly informed the Customer of this consequence in the change notice.
- These General Terms and Conditions shall take precedence over terms stating otherwise, which have been transmitted by the Customer or which are included in its documents, unless they have been accepted in writing by Weilandt Elektronik. In the case of colliding GTC, exclusively the GTC of Weilandt Elektronik shall apply.
- These GTC shall also apply if this is not pointed out separately in follow-up transactions with the Customer.
- The law of the Federal Republic of Germany applies to all legal relations between Weilandt Elektronik and the Customer, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
§ 2 Offers
Our offers are non-binding and subject to change. Prior sale remains reserved. A contractual relationship shall become effective only upon a written order confirmation by Weilandt Elektronik or by the partial execution of the Customer’s orders and be determined exclusively by the content of the order confirmation, service specifications if any, and the General Terms and Conditions of Weilandt Elektronik. Weilandt Elektronik also makes the reservation that there may be minor technically unavoidable deviations from the contract, within limits reasonably acceptable to the Customer, even after confirmation of the order. Information of a technical nature, drawings, photos, dimensions, weights or other performance data contained in offers, confirmations, brochures and similar documents are non-binding, unless their binding effect is expressly agreed in writing. The Supplier reserves its unlimited property rights, copyrights and rights of exploitation on illustrations, drawings and other documents; these items may not be made accessible to third parties without the explicit written agreement of Weilandt Elektronik (“Non-Disclosure Agreement”, NDA).
§ 3 Prices / payment
- All prices are understood as net prices. The value added tax will be charged in addition in its respective statutory amount.
- All payments shall be made without deduction free to the point of payment of Weilandt Elektronik.
- The prices stated by Weilandt Elektronik on the date of the Customer’s offer, plus the separately indicated statutory value added tax shall be decisive. If no prices are explicitly specified to the Customer, the respectively valid price list shall apply. Shipping, packaging and insurance costs shall be borne by the Customer. Cost estimates may be exceeded by 15% without previously notifying the buyer.
- Weilandt Elektronik reserves the right to refuse the acceptance of cheques or bills of exchange as payment instruments. Cheques and bills of exchange will be accepted exclusively on account of performance in all cases. Costs incurred for their encashment shall be borne by the Customer. The claim to payment will be settled only upon encashment of the cheques or bills of exchange.
- Payments for deliveries and services are due on receipt of the invoice. The place of performance for all payments, deliveries and services is the place of business of Weilandt Elektronik in Essen, unless agreed otherwise in individual contracts.
- Our invoices will be due for payment within 14 days from the invoice date. If the Customer is in default of payment, we shall be entitled to demand payment of default interest. If we can prove a higher loss due to default, we shall be entitled to claim this loss. The return of payments or offsetting against any claims whatsoever is excluded. Weilandt Elektronik also reserves the right to perform deliveries to existing Customers only against cash on delivery, advance payment or cash payment; this applies in cases where the order value is above the average, the credit limit is exceeded or the Customer pays unreliably or not on time.
- If the agreed payment dates are not kept, the Customer will be in default without requiring a prior dunning if it is not a user. Subject to claims of further rights, default interest in the amount of 8 percentage points above the base interest rate will be owed in this case. This amount of interest will also be charged if Weilandt Elektronik does not collect due payments at the Customer’s request.
- Weilandt Elektronik shall not be obligated to perform the contract for as long as the Customer does not fulfil its duties in accordance with the agreement, in particular not for as long as due invoices are unpaid. Offsetting or claiming rights of withholding based on claims of the Customer is excluded, unless these claims are uncontested, accepted in writing by Weilandt Elektronik or established as final and absolute.
- If the Customer owes damage compensation to Weilandt Elektronik for non-performance pursuant to the general statutory provisions, it shall be obligated to pay Weilandt Elektronik an amount of 15% of the order value plus the value added tax, unless it proves that the loss incurred by Weilandt Elektronik was lower. Weilandt Elektronik, however, shall also have the right to demand compensation for the loss actually incurred should this be higher.
- In the event that cost estimates are rejected, we reserve the right to charge the Customer in advance for the costs arising and initiate the return shipment of the systems only upon the receipt of payment.
- Before the repair is carried out, a written cost estimate will be drafted. For the comprehensive technical analysis, we will charge a fee of EUR 39 per device for MDE devices, hand-held devices, scanners, mobile printers and other small devices and a fee of EUR 80 for stationary printers and stacker terminals. This analysis fee will be invoiced when repairs are conducted or it can also be waived if the device is scrapped.
- If we should not receive a response within 60 days from sending the cost estimate, we may demand payment of this fee or dispose of the device in a professional manner.
§ 4 Delivery period, delivery, shipment, transfer of risk
- The delivery or performance times indicated by Weilandt Elektronik are non-binding and Weilandt Elektronik will work toward adhering to the delivery/performance period, without extending any guarantee for this. The delivery/performance period shall begin upon receipt of the order confirmation, whereas at the earliest upon the provision of any documents, approvals or releases to be obtained by the Customer, and clarification of all questions as required for the performance or receipt of prepayments if such have been agreed. The delivery period will be deemed kept if the object of delivery has left the place of performance or the notification of the readiness for shipment has been given by the end of the period. The adherence to the delivery/performance period requires the fulfilment of the Customer’s contractual duties. In events of force majeure, the delivery period shall be suspended and resume or continue after the obstruction has been overcome. Cases of strike, lockout, inadequate supply of materials, restrictions in the supply of energy and services, a lack of transport services or similar events the cause of which is outside of the sphere of influence of Weilandt Elektronik are held equal to force majeure.
- Exclusively the written order confirmation from Weilandt Elektronik shall be decisive for the scope of the performance. Weilandt Elektronik shall be permitted to make part deliveries to the extent that this is reasonably acceptable for the Customer.
- The delivery or part delivery shall be shipped at the risk and cost of the Customer. The risk shall transfer to the Customer in all cases on the dispatch of the delivery or part deliveries from the place of delivery, notably also if delivery with carriage paid has been agreed. If the shipment is delayed at no fault of Weilandt Elektronik, the risk shall transfer to the Customer already on the notification of the readiness for shipment. The delivery or part delivery will only be insured for transport damages upon the Customer’s explicit request and at its cost.
- Special preferences or instructions for shipment shall be indicated in the order. Otherwise, the delivery or part delivery shall be made to the best of knowledge and faith, without liability for the cheapest transport method or the most affordable shipment.
- The Customer’s withdrawal from the contract for a failure to adhere to the delivery date requires a written warning after the end of the delivery period, which shall also set a grace period. The set grace period meanwhile shall be appropriate in light of the overall circumstances. Damage compensation claims for delivery delay are excluded, unless Weilandt Elektronik has caused the delay intentionally or gross negligently.
§ 5 Reservation of title
- All products shall remain the property of Weilandt Elektronik until all claims of Weilandt Elektronik against the Customer are fulfilled, regardless of their legal reason and irrespective of whether they are already due or not or if they will become due in the future, and in case of bills of exchange and cheques for the time until they are encashed. This also applies to such products, the delivery of which has been explicitly referred to by the Customer. In case of on-account invoicing, the reservation of title shall be deemed a security for the claim to the balance. The Customer is obligated to store the products carefully that are subject to the reservation of title by Weilandt Elektronik and to purchase insurance cover for them.
- The Customer shall not attain ownership by virtue of the preparation and processing of products subject to the reservation of title by the Customer. It is expressly agreed that Weilandt Elektronik is a processor as defined by Sec. 950 BGB [German Civil Code].
- If the products subject to the reservation of title are combined or mixed by the Customer with other products, which do not belong to Weilandt Elektronik, Sec. 947 and Sec. 948 BGB shall apply to the effect that Weilandt Elektronik shall be entitled to the co-ownership share in the new object as a product subject to the reservation of title.
- The Customer shall bear the duties, risks, liability, taxes, charges and other burdens relating to the ownership, possession, acquisition and operation of the object of purchase. It shall be liable for caused damages through intent or negligence and for any loss or accidental loss or any intentional or accidental damaging of the object of purchase. Any damages occurring on it or its loss shall be reported immediately to Weilandt Elektronik.
- Weilandt Elektronik reserves the title to the items delivered by Weilandt Elektronik (products subject to the reservation of title) until all claims relating to the business relationship with the Customer have been satisfied. A transfer of the ownership of the products subject to the reservation of title to third parties is permissible only insofar as this is done in the Customer’s ordinary course of business and if it reserves ownership of these products subject to the reservation of title until payment of all its claims resulting from the business relationship with the third party. The Customer shall treat the products subject to the reservation of title with care. Weilandt Elektronik shall be informed immediately if the products subject to the reservation of title are attached or damaged or lost, and in the event of a relocation of the Customer’s place of business. If the Customer breaches these duties, Weilandt Elektronik may declare its withdrawal from the contract. In the event of the Customer’s default of payment, Weilandt Elektronik shall be furthermore entitled to take back the products subject to the reservation of title, sell them and deduct the earned profit from existing claims; the same applies in the event of a deterioration of the Customer’s financial position, which becomes apparent only after the signing of the contract and which may result in the Customer’s payment being at risk.
- The Customer hereby assigns its claims arising from resale including all collateral rights, up to the amount of the claims in the entitlement of Weilandt Elektronik against the Customer, to Weilandt Elektronik. Weilandt Elektronik hereby accepts the assignment. Until revocation, the Customer shall be entitled to collect the assigned claims in its own name; revocation shall be permissible only if the Customer is in default of payment.
§ 6 Right of return
In accordance with EU Regulations, consumers have a right of return for a period of at least 14 days. Weilandt Elektronik expressly advises that these rules apply solely for the protection of consumers in the definition of the respective legislative texts. The items sold by Weilandt Elektronik are capital goods and sold exclusively to commercial buyers (companies). Therefore, all of our deliveries are generally excluded from the right of return. If the Customer has been granted a right of return in writing, in modification of our General Terms and Conditions, the products must be returned damage-free and to the complete extent, by shipment at the latest 8 days from receipt, in the undamaged original packaging and enclosing the delivery slip as well as a copy of the invoice. For the return and inspection of the products, Weilandt Elektronik will charge a fee of at least EUR 50 plus costs, if any, for the replacement of damaged packaging and/or damaged/incomplete products. Moreover, Weilandt Elektronik reserves the right to return the products at the recipient’s cost without processing them if they have been given back in abuse. The right to return products never applies to data carriers the seals of which have been broken or to deliveries of products that have been manufactured according to customer specifications (e.g. services, commissioned programming, special orders, labels or software).
§ 7 Duties of inspection and notification of defects on purchase
- The Customer shall inspect the products directly upon receipt and note any externally visible transport damages, transport defects or incorrect deliveries on the shipment papers. All delivered products are to be inspected for completeness also with regard to individual components of the product. Any quantitative deviations or defects that are recognisable in the handover shall be notified in writing to Weilandt Elektronik, whereas at the latest within three days from receipt of the products. The object for which defects are notified shall be retained safely and in unchanged condition. Further instructions shall be obtained from Weilandt Elektronik. If the product is returned, it must be packed appropriately for the transport.
- If the delivered products have defects, Weilandt Elektronik shall be obligated for subsequent fulfilment. If the products are newly manufactured products, the right shall be reserved for the Customer to reduce the payment or, at its choice, withdraw from the contract if the subsequent fulfilment fails. The Customer shall give Weilandt Elektronik enough time and ample opportunity for the subsequent fulfilment. The Customer may demand the delivery of a defect-free object only if two attempts to rework the defective device have failed. Furthermore, Weilandt Elektronik may refuse the kind of subsequent fulfilment chosen by the Customer if it can only be implemented at disproportionate costs.
§ 8 Warranty
- General remarks
- If the purchase is a commercial transaction for both parties, the Customer’s claims of defect require that it has correctly fulfilled its duties to inspect and notify of defects, which are incumbent on it pursuant to Sec. 377 seqq. HGB [German Commercial Code]. Minor deviations from the descriptions in offers or order confirmations shall be deemed approved, especially in the case of changes that are due to technical progress.
- Weilandt Elektronik extends the warranty of the respective manufacturer of devices, spare parts and accessories. We grant a warranty of 3 months on used up spare parts and performed work and 6 months on deliveries of used up consumables including accessories. A copy of the invoice shall be enclosed with each warranty case. Damages caused by wear and tear and force majeure, or disregard for operating instructions, or manipulations of the products by the Customer or third parties are excluded from the warranty. We do not extend any warranty for missing information in the product descriptions or operating instructions on grounds of deficient consulting and its consequences. Our warranty shall expire in the case of a failure to comply with the payment conditions.
- Weilandt Elektronik grants a warranty on services (e.g. commissioned programming) exclusively to the extent of the written description of functions.
- If Weilandt Elektronik is not willing or not able to rectify the defect, in particular, if it is delayed beyond appropriate deadlines for reasons within the control of Weilandt Elektronik, or if the rectification of the defect fails otherwise, the Customer shall be entitled, at its choice, to withdraw from the contract or demand a corresponding reduction of the purchase price. Unless stated otherwise below, further claims of the Customer – regardless of the legal reason – are excluded. Therefore, Weilandt Elektronik shall not be liable for damages not caused directly on the object of delivery; in particular, Weilandt Elektronik shall not be liable for lost profit or other financial losses of the buyer. The foregoing exclusion of liability shall not apply if the cause of the damage is due to intent or gross negligence. It shall also not apply if the buyer claims damages for non-performance in accordance with Sec. 463, Sec. 480 (2) BGB on grounds of an absence of assured properties and condition.
- We guarantee that the hardware has the assured properties and condition and that it is free from defects, which eliminate or reduce the value or the suitability for the customary use or the use as intended pursuant to the contract; a minor reduction of the value or suitability for use remains outside of consideration in this respect.
- The contents of our warranties are equivalent of the warranties, which are given for the relevant object by its manufacturer.
- The Customer shall notify us of any defects arising during the warranty period without delay, stating all details recognisable to it and it shall observe our information on troubleshooting and identifying the fault in the process to the reasonable extent.
- Within the scope of our warranty, we may repair or replace devices, elements, additional equipment or parts. The Customer shall not be entitled to free replacement devices during this period.
- A warranty is given only for the material used in the case of labels. The time limit for the notification of defects in these cases is 3 months from the delivery date.
- Standard software
- The Parties agree that it is not possible according to the state of technology to develop programs in such a way that they are fault-free for all application requirements. We provide a service specification, in the respectively latest state of the art, for each standard software program offered by us, which describes the intended use and the requirements for the use of the program.
- In case a fault occurs, the Customer shall be required to draft documentation of the fault according to the information provided for this in the application documentation. Upon receipt of the documentation of the fault, we will forward it to the upstream supplier and perform warranty services to the same substantive extent as generally granted by the upstream supplier.
- Custom software
- The Parties agree that it is not possible according to the state of technology to develop programs in such a way that they are fault-free for all application requirements. Upon delivery, the Customer shall test the delivered software and its documentation extensively. Any defects must be reported to Weilandt Elektronik within 3 weeks from delivery and be rectified as quickly as possible by Weilandt Elektronik. The software will be deemed accepted if no notification of defects, which unacceptably limit the intended use of the software, has been received during this period.
- In the event of a fault, the Customer shall be responsible for documenting the fault.
- The period of warranty on the performed work and used spare parts is three months. This does not apply to wear parts.
§ 9 Validity of these General Terms and Conditions
If parts or particular phrases of this text should not be consistent with the applicable legal situation or no longer or not fully comply with it, the remaining parts of the document shall remain unaffected thereof in terms of their content and validity.
§ 10 Assembly and repair work on site
- Assembly or repair work will be invoiced by the expense of time, unless a flat price has been expressly agreed. Waiting time will also be charged as working time.
- The Customer shall confirm the worked hours and the work performance to the service technician of Weilandt Elektronik on the service report presented to it.
- The Customer shall support the service technician of Weilandt Elektronik in the performance or repair at its own cost. A number of required qualified assistants (locksmiths and other trained professionals, subworkers) shall be provided as needed for the assembly or repair and for the time that is required; the assistants shall follow the instructions of the service technician. Weilandt Elektronik does not assume any liability for the assistants. Provision of heating, lighting, electricity, pressurised air, wash facility, sanitary facilities, and first aid stations for the service technician, as technical assistance contributed by the Customer, must be assured in the manner that the assembly or repair can be started directly upon the service technician’s arrival and be completed without delay up until acceptance by the Customer.
- The Customer shall take the required special measures at the place of use for the protection of persons (in particular, own employees) and property. It shall also inform Weilandt Elektronik of existing special safety requirements, if these are important for the service technician. The Customer shall inform Weilandt Elektronik of any violations by the service technicians of such safety rules.
§ 11 Data Protection / Privacy
- The Customer and Weilandt Elektronik are obligated to observe the legal regulations on data protection during the performance of the contractual relationship and impose these requirements for the observation of these provisions on their employees. The Parties reciprocally undertake to prove the compliance with this obligation on request, in the form as needed according to legal regulations.
- Weilandt Elektronik gathers, processes and uses personal data (existing data) and data of usage and accounting data of the Customer in an automated procedure, insofar as this is required for the establishment, substantive arrangement or change of the contractual relationship according to Sec. 5 (1), Sec. 6 (1) TDDSG [German Tele Services Data Protection Act], Sec. 18 (1), Sec. 19 (1) MDStV [Interstate Treaty on Media Services].
§ 12 Place of performance and place of jurisdiction
- The contract is governed by German law.
- The place of performance is Essen.
- Provided that the contractual partner is a general merchant and no other exclusive place of jurisdiction is prescribed, Essen is agreed as the place of jurisdiction.
- If a provision of the contract or these terms should be or become invalid in full or in part, the validity of the contract and the foregoing terms shall not be affected for the rest. The invalid provision or term shall be replaced by such a provision or term, which comes closest in its content to the invalid provision or term.