General Terms and Conditions (GTC)

 

1. General

1.1. Abbreviation: Hereinafter, the Contractor, company Westiform Germany GmbH, is referred to as “WFG" and the Customer is referred to as “C”.

1.2. Scope, Written Form Mandate

1.2.1. The following Terms and Conditions (GTC) shall apply exclusively to companies as defined in Art. 14 of the German Civil Code (BGB); i.e. natural or legal entities that acquire goods or services for the purpose of commercial or professional use as well as legal entities under public law or special funds under public law.

1.2.2. WFG’s Terms and Conditions shall apply exclusively to business relationships with our customers, including information and consulting services. Deviating general terms and conditions of C shall be deemed effectively agreed upon only if they have been confirmed in writing by an individual authorized to represent WFG, who is registered in the trade register.

1.2.3. In their respective effective versions, these Terms and Conditions shall be considered a master agreement that also applies to future product and service contracts with the same C, without WFG having the obligation to reassert this fact in every single case.

1.2.4. Individual agreements made with C in specific cases (including ancillary agreements, undertakings, supplements and amendments) shall take priority over these Terms and Conditions. To render such agreements that supplement or modify the primary contract effective, which shall in particular also include agreements and commitments of any kind made by individuals working in the field for WFG, a written contract and/or a written confirmation or a confirmation in text format issued by WFG shall be required.

1.2.5. Unless other provisions have been agreed upon, the provisions of the BGB and/or HGB (German Trade Law) shall otherwise apply.

 

2. Provision of Information/Advice/Execution of the Products and/or Services

2.1. WFG shall make its best efforts to diligently fulfil the contract in compliance with the agreements and processes agreed upon with C. Pursuant to the provisions of these GTC, agreements on the quality of the goods shall be all agreements and product descriptions that are subject matters of the individual contract pursuant to these GTC (Items 1.2.4 and 7.0). In the absence of an express other agreement, WFG shall not assume any liability for the suitability of the products and/or services for C’s pursued purposes.

2.2. Information and explanations provided by WFG, e.g. by employees, in product literature, on our website or by our agents concerning our products and services, such as dimensions, weights, illuminance, day and night effects of colours, power consumption, etc. shall merely be approximate and average values our products deliver. They do not represent characteristics or warranties with regard to our products. Public statements made by the manufacturer or other third parties (e.g. advertising claims) concerning the quality of an object cannot be expected by the C unless they have been expressly confirmed in writing by WFG.

2.3. The characteristics of samples shall only become integral components of the contract if they have been expressly agreed upon in text format. If WFG should deliver on the basis of product samples, deviations from the former by the delivered goods shall be permitted and shall not entitle C to file complaints or claims with WFG, if they are trade standard compliant and if any specifications the Parties have agreed upon are met by the delivered goods unless an agreement to the contrary has been made.

2.4. Colour deviations that are trade standard and minor deviations in the luminous colour and intensity (day/night effect) as well as the condition of the surface of the material that occur due to the properties of our production and the material used, and that do not impair the regular use, shall not entitle the C to reject the products and shall not entitle the C to claim rights based on deficiencies. The printed colours in WFG product literature are not true colours and shall not be considered binding colours. The trade standards of colour deviations and glossiness level shall be assessed based on the International Quality Policies for the Coating of Building Components Made of Aluminium along with its Alloys- GSB AL 6311 – of the GSB International e. V., GSB AL 631; which can be downloaded from www.gsb-international.de.

2.5. Minor design modifications shall be permitted as long as the functionalities of the delivered part are still warranted and the modification is reasonable for C, in particular because it is a beneficial deviation for C. Quality requirements that exceed the common standards shall be subject to an express agreement to that end.

2.6. If, due to standard trade batch differences and/or because of the effects of weather, colour differences from already installed deficiency free parts occur in conjunction with parts delivered as part of retroactive fulfilment transactions, this shall not entitle C to raise claims against WFG, if the delivered goods meet the specifications the Parties agreed upon; unless an agreement to the contrary has been made.

2.7. WFG shall assume an obligation to provide advice only if this has been explicitly agreed upon in a contract.

2.8. A warranty shall be deemed assumed by WFG only if a property and/or performance has been defined by us in writing as “legally guaranteed.”

2.9. A guarantee for an identical replacement (same design of parts or components) shall not be assumed.

2.10. Products/promotional elements delivered by WFG do not deliver any construction physical functions.

2.11. In the absence of an explicit agreement between the Parties, WFG shall be under no obligation to provide masonry work (wall breakthroughs, pouring of concrete bases, setting of anchor screws, etc.), plumbing work (sealing of breakthroughs / covers, etc.), roofing work, plaster, painting, foundation and electric work as well as provide scaffolding higher than 4 m, special ladders, mobile ladders, platforms and/or safety precautions, such as cordoning off. None of the aforementioned services are included in the price.

2.12. WFG reserves the right to commission all work with third parties.

2.13. The mandate to provide the object code and/or source code, e.g. for program components that have been specifically developed for the C, shall be subject to an express agreement to that effect. WFG can deliver application documentation for computer programmes in the form of an electronic document in German, if WFG owes the provision of application documentation.

 

3. C’s (Participation) Obligations

3.1. C’s General Obligations, Cooperation

3.1.1. The Parties undertake to closely and efficiently cooperate in every project phase and in particular

  • Adequately specify in writing the requirements the subject matter of the contract must meet;
  • Fulfil their (participation) obligations in a timely manner; take the (participating) actions in due time and make declarations in a timely manner, and
  • Concisely check the drafts, samples, sketches and other project services, in particular dimension information and descriptions of the properties of the product to be delivered in quotation and order-documents. They shall promptly report any deviations in text format to the other Party.
  • C shall undertake to make decisions concerning the required investments in conjunction with the project in a timely manner and shall promptly initiate them.

3.1.2. The Parties shall agree on a time schedule and workflow plan for the owed services. In the time schedule and workflow plan, the Parties shall agree whether deadlines and due dates are to be considered binding or non-binding. If the Parties do not define any regulations on this, the deadlines and/or due dates shall be non-binding.

3.1.3. If the planning of the owed product should necessitate location maps and floor plans, WFG shall base its planning on the location maps and floor plans of an object provided in suitable scales by C when placing the order. In these plans, C shall concisely indicate all relevant information required to define the placement location and the orientation of the products and any accessories (e.g. vertical ladders, infeed lines, etc.) towards the desired point on the premises, etc., taking into account the northern direction.

3.1.4. If a static computation should be necessary because of the scope or size of the products delivered by WFG, WFG shall compile it and bill this service separately. The same shall apply to officially required proof of stability for WFG products. The verification of the static requirements as well as the documentation of the former for works provided by C and the soil (e.g. stability of the building’s roof, base constructions, foundations, analysis of the soil quality) shall be performed and guaranteed by C.

3.1.5. C shall be responsible for the availability of all required permits or approvals, in particular those issued by public authorities. The former must have been granted at the latest five calendar days prior to the agreed upon installation start date. Upon request, a copy/copies of the permit(s) shall be made available to WFG. C shall be responsible for obtaining all permits, unless the Parties have agreed in specific cases that WFG will apply for the required permit(s) in C’s name.

3.1.6. C shall not be permitted to monetize and share samples. Samples shall be returned to WFG.

3.1.7. WFG shall have the option to bill the costs for samples, prototypes, sketches, drafts, substructure designs and other project services, including any presentation costs, expressly requested by C. C shall pay for such costs even if the order should not materialize.

3.1.8. If C should be in default of the actions C is responsible for, the performance obligations of WFG that cannot be performed in the absence of such actions or that can be performed only subject to disproportionate added expenditures, shall be suspended for the duration of the delay. Any resulting added expenditures shall be reimbursed by C at the respective applicable WFG compensation rates in addition to the agreed upon remuneration. This shall be without prejudice to the claiming of additional rights.

3.2. Performance of and Participation Obligations in Conjunction with Installation Work

3.2.1. The installation conditions set forth in Item 3.2.0 shall apply to any type of delivery of installed goods by WFG or by agents commissioned by WFG, in particular also to poles, towers, pylons, display stands, digital advertising systems and façade facing.

3.2.2. If a building permit should be mandated by law for the installation of WFG products or if additional permits or approvals by public authorities or third party consent should be required for the performance of the installation, C shall document the existence of the former to WFG pursuant to Item 3.1.5 prior to the start of the installation work.

3.2.3. Furthermore, the following conditions must be in place at the construction site (ensured by C):

3.2.4. C shall provide unloading support, electricity, water and lockable storage facilities for goods and tools free of charge.

3.2.5. C shall ensure the availability of sufficient construction driveways, access to the installation areas as well as work space (e.g. for the set-up of scaffolding/lifting systems) if such are required. C shall instruct the installation personnel as to the driveways to the site. WFG shall not assume any liability for damage to the landscape if they are caused by C’s instructions.

3.2.6. WFG’s installation scaffolding is suitable for an installation height that does not exceed 4 m to the bottom edge of the WFG products. Scaffolding shall be provided at the construction site or by WFG for installations above this 4-meter-limit as agreed upon between the Parties or a lifting platform shall be used. If scaffolding should be provided, compliance with the provisions of public law shall be mandatory. If WFG should be commissioned to provide a lifting platform, C shall also absorb the costs for liability insurance with a coverage amount equivalent to the respective net order value.

3.2.7. If WFG should notify C that WFG is ready to install and the installation cannot be performed due to weather conditions or has to be interrupted for that reason, C shall assume the risk and costs arising from any resulting damage caused by the delay. This shall be without prejudice to the provision set forth in Item 11.0 (Force Majeure).

3.2.8. Any required foundations shall be installed by C 10 days prior to the agreed upon installation date.

3.2.9. C shall undertake to install all electrical connections and electrical lines professionally up to the planned connection point prior to the agreed upon installation date and/or have this work performed by a licensed professional electrical installer. All electrical connections must comply with the applicable EN/VDE standards. C shall undertake to have the installed system and its functions demonstrated to WFG by a licensed professional electrician. In the interest of smooth operations, C is advised to commission a local licensed professional electrical installer to perform the electrical works.

3.2.10. WFG’s service scope does not include the installation of fuse boxes and the connection to the public electric power grid. This work must be performed by a licensed professional electrician in compliance with the EN/VDE standards.

3.2.11. Any necessary connections and seals between WFG products and the structure shall be commissioned by C with a licensed professional enterprise, preferably from C’s region. Roof seals shall be installed by C, if possible prior to the start of the installation work. They shall not be part of WFG’s scope of services under any circumstances.

3.2.12. Even if fixed pricing has been agreed upon for installation prices, the installation prices do not include costs resulting from delays C is responsible for or if additional work has to be performed. Work time and material expenses shall be for C’s account.

3.2.13. C shall ensure that during the entire installation period an individual holding signatory rights is available at least once a day to accept installation reports. Upon completion of the installation work, a formal acceptance inspection shall be performed if one of the contracting Parties demands it. During this acceptance appointment, an acceptance log, which shall be used as the basis for billing, shall be compiled. If a formal acceptance should not take place and if at the time the installation is completed C or an individual authorized to represent C should not be present, a prepared acceptance log shall be left behind. C shall promptly counter sign the acceptance log and sent it to WFG. In such cases of absence, at least a simple visual and functional inspection shall be confirmed in writing by a witness who is present, and the confirmation shall be sent to WFG. (If another trip has to be made for the acceptance due to the absence of individuals holding signatory authorities, such services shall be billed additionally in compliance with the documentation provided.) Any complaints and/or reasons for the non-acceptance of WFG’s services shall also be promptly communicated to WFG in writing. If a formal acceptance should not be demanded, the work shall be deemed accepted within 12 calendar days after the written completion of services notice has been sent. Unless otherwise agreed upon, if C has already started to use the service or part thereof, the acceptance shall be deemed to have occurred 8 calendar days after such usage has begun.

3.2.14. The installation shall be performed in compliance with the technical planning as contractually agreed upon with C. Retroactive changes shall be possible only within certain limitations and the related costs shall be for C’s account.

3.2.15. WFG shall have the right to post temporary advertising at the construction site during the installation period.

 

3.3. Participation Obligations in Conjunction with the Delivery of Digital Media Content/Software Production and Adaptation; Planning Phase, Detailed Concept

3.3.1. C shall undertake to:

  • Provide WFG and WFG’s agents with proper documents, records and information required for the provision of the services; in particular related to existing systems, devices, computer programmes and     components of computer programmes that are supposed to interact with the services to be rendered;
  • Provide all artwork/drafts (images, graphics, existing buttons, lettering, logos, copy, data, etc.) required for the generation of HTML pages, videos, flash movies, Java scripts, databases and programmes in electronic formats unless otherwise agreed upon. Unless other agreements have been made, the binding formats for graphics shall be JPG, PNG, GIF or TIF (format IBM-PC);
  • Make available the required work spaces and work resources;
  • Set up and provide test scenarios and test data as well as the test environment;
  • Document and promptly notify WFG of any errors found in the provided services during testing or productive operation in a reproducible or otherwise verifiable format;
  • Make available at C’s own expense systems, installations and professional staff qualified to collaborate if this is necessary to render the services and
  • Continuously maintain C’s system environment (hardware and software) (C shall have the option to enter into and maintain respective maintenance and service contracts with WFG or third Parties for this purpose).

3.3.2. During the planning phase, the Parties shall compile a specification of the programmes and components to be developed (“Detailed Concept”). Both Parties shall sign this Detailed Concept as a written specification to demonstrate their mutual agreement.

3.3.3. The final written version of the Detailed Concept shall be the binding basis for the programming and/or adaptation of the software/components by WFG. It shall supersede all prior versions. The content of the Detailed Concept shall be deemed guaranteed only if it has been explicitly designated as such.

3.3.4. It shall be C’s responsibility to back up at regular intervals C’s data inventory with the due diligence of a professional business person. Specifically, immediately prior to any installation and/or other intervention by WFG or third parties commissioned by WFG, C shall perform a complete data backup of all system and application data. The data backup shall be stored in such a manner that the recovery of the backed up data is possible at any time.

3.3.5. C shall obtain for WFG the right to use and access third party systems if this is necessary to render the services owed under the Contract.

 

4. Project Organization, Project Team

4.1. The Parties shall arrive at an agreement to determine whether a project team shall be constituted in specific cases to execute the project. The project team shall be constituted of a sufficient number of qualified employees of C and WFG. The respective members assigned by each Party shall be designated in writing along with their responsibilities within the project as well as their telecommunications data (phone and fax number, email address, cell phone number). C shall absorb the costs, and in particular the human resource costs of C’s project team employees, C incurs as a result of this.

4.2. The project team shall initiate and monitor the actions to be taken according to the time schedule and workflow plan. The project team shall discuss any deviations from the time schedule and workflow plan and shall propose to the Steering Committee (Item 5.0) any modifications that have a significant impact on the overall workflow of the respective project for decision-making.

4.3. The project team shall convene for periodic project meetings at intervals to be jointly agreed upon. During such meetings, the project status shall be determined in detail and the project planning shall be continuously updated. A member assigned by WFG shall compile minutes for these project meetings in text format, which shall be promptly forwarded to the other members of the project team and the Steering Committee (Item 5.0). The minutes of the previous project meeting shall be approved at the beginning of each project meeting.

4.4. If differences of opinion should arise within the project team, the Steering Committee (Item 5.0), which may be contacted for this purpose by any project team member, shall decide.

 

5. Steering Committee

5.1. The Parties shall constitute a parity-based Steering Committee of executives of both Parties, the members of which shall be designated by name in writing along with their telecommunications data (phone and fax number, email address, cell phone number). Item 4.1 shall apply accordingly with regard to C’s cost absorption responsibilities for the members of the Steering Committee designated by C.

5.2. The Steering Committee shall monitor the project team’s work and make decisions if differences of opinion arise within the project team.

5.3. The Steering Committee shall convene as needed. A member of the Steering Committee assigned to it by WFG shall compile minutes of these meetings in text format, which shall be sent to the other members of the Steering Committee promptly after the documented meeting. The minutes of the previous meeting shall be approved no later than two weeks after any meeting.

 

6. Programming, Adaptation, Additions to Computer Programmes

6.1. Based on the Detailed Concept and the current state-of-the-art, WFG shall compile and/or consolidate functional computer programmes/components for the planned applications and/or update software as contractually agreed upon.

6.2. Based on a time schedule and workflow plan to be separately compiled, WFG shall develop one or several drafts of the programme description and shall provide it to C for verification. If C should find errors, C shall notify WFG in writing within 2 weeks after the submission of the respective draft.

6.3. Subsequently, WFG shall conduct the further programming/selection of the components; in particular the coding, tests and the integration of the different components. WFG shall brief C at regular intervals on the status of the work and the compliance with the requirements the computer programmes/components must meet. C shall be promptly notified of any imminent delays and change requirements. The computer programmes/components WFG has completed and tested shall be promptly delivered to C.

 

7. Quotations and Closing of Contracts

7.1. WFG’s quotations shall be subject to change and non-binding unless they are expressly designated as binding. They shall constitute requests to place orders. This shall also apply if WFG has provided C with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to EN/DIN standards), other product descriptions or documentation – including electronic data.

7.2. C shall be bound by C’s purchase order as a request to enter into a contract for 14 calendar days (based on the time at WFG’s domicile) – after the receipt of the order by WFG, unless C regularly has to anticipate that WFG will accept the order later (Art. 147 BGB [German Civil Code]). This shall also apply to C’s follow-up orders.

7.3. Even in ongoing business transactions – a contract shall not be deemed closed until WFG has confirmed C’s order in writing by submitting an order confirmation. If the final version of the technical performance specification is not yet available at the time the order is confirmed, the contractual obligations shall be further specified by the jointly compiled performance specification compiled after the Contract has taken effect.

7.4. If C should, in full or in part, cancel any orders placed with WFG prior to their delivery and/or execution, C shall be liable for any costs incurred for the order until that date as well as any lost profits.

7.5. C shall promptly notify WFG of any errors or contradictions in the order confirmation in text format.

7.6. The effectiveness of this Contract shall not be contingent upon the approval of structural or any other measures for which permits are required from public authorities or other third parties.

 

8. Change Requests

8.1. If C should desire a modification of the contractual fundamentals or the agreed upon work success or if changes for the attainment of the former should be necessary, C shall promptly notify WFG.

8.2. Moreover, changes or additions to the content or scope of the services owed by WFG may be submitted to the Steering Committee by either Party or the project team, if such a team has been constituted. The proposal shall contain at a minimum the following information:

  • Specification of the nature of the change or addition;
  • Reasons for the request from a professional and technical perspective;
  • Effects on the time schedule and workflow plan that have to be anticipated and
  • Cost estimate, including the incurred or still to be incurred costs for the review of the change and additions proposal as well as the performance of the change process.

8.3. The Steering Committee shall review the proposal and shall present an opinion to the Parties. The decision on the performance of the change and addition proposal shall be made by C. WFG shall have the right to reject the performance of the change or addition, if it is either technically impossible to execute or affiliated with disproportionate expenditures WFG cannot be reasonably expected to incur.

8.4. If the review of the change and addition options or the actual execution of the change and addition affects the contractual service structure (remuneration, deadlines, acceptance modalities, etc.), the Parties shall promptly implement the written update of the contractual provisions. Insignificant effects shall not be taken into account. WFG shall be entitled to additional cost-based compensation for additional expenditures WFG incurs as a result of the realization of the change or addition proposal as well as the performance of the change and addition process.

 

9. Prices/Remuneration

9.1. Unless otherwise agreed upon, the prices/remuneration of WFG shall be in Euros, net, excluding applicable value added tax. Prices for goods shall not include packaging and shall be ex works (EXW) (Incoterms 2010 | www.iccwbo.org).

If the subject matter of the service should be planning, compilation and/or the adaptation and installation of software/components and the Parties have not agreed upon fixed remuneration, the remuneration shall be based on costs based on WFG’s rates in effect at the time the services are provided.

9.2. Packaging, shipping costs, transportation insurance, import duties, handling and storage fees as well as applicable value added tax shall be billed separately. The same shall apply to the costs incurred for measuring, computation of quantities and volumes made at the construction site. Pricing for orders quoted including installation shall principally not include the low voltage end installations up to the planned connection point of the WFG products and shall not include the costs for the provision of cranes, lifting platforms and/or installation scaffolding that goes beyond a working height of 4 m. Masonry, plaster, chiselling, roofing and landscaping work shall also not be included in the pricing.

9.3. WFG shall have the right to unilaterally increase the remuneration accordingly, if material production and/or material costs, as well as product procurement costs, payroll and payroll affiliated costs, social security contributions, energy costs and/or costs resulting from environmental protection mandates, currency fluctuations, changes in customs tariffs, freight charges and/or public fees should increase, if they have a direct or indirect impact on the production or procurement costs of the goods or the contractual services and if more than 4 months have passed since the Contract was made and the delivery is executed. An increase as defined in the previous sentence shall not be applied if the cost increase in some or all of the aforementioned factors is voided because of cost reductions in other factors of those mentioned as far as the overall cost of delivery is concerned. If the aforementioned cost factors are reduced and the cost reduction is not compensated for by the increase of any other of the aforementioned cost factors, the cost reduction shall be passed on to C in conjunction with a price reduction. If the new price resulting from WFG’s aforementioned price adjustment right should result in an increase of 20% or more over the original price, C shall have the right to rescind from any contracts that have not been completely fulfilled at the time. However, C shall be eligible to exercise this right only immediately upon receiving notice of the increased prices and if parts of the services have already been rendered and billed, only with regard to the portions of the contract that have not been fulfilled at the time.

9.4. C shall pay separately for any additional services ordered retroactively that are outside of the scope of services or subject matter of the contract as well as for change requests. WFG’s applicable rates shall apply. The aforementioned shall also apply to services based on false or incomplete information provided by C, deficiency claims that cannot be verified, improper use of the system or breaches of duty by C.

9.5. In addition to the agreed upon remuneration, WFG shall be entitled to reimbursement of the expenses and costs incurred for the rendering of the services, in particular travel expenses and per diem. WFG shall bill the former in an auditable manner along with the services rendered or separately as soon as possible.

9.6. When billing on the basis of actual costs, WFG shall specify the number, names, scope, hourly or daily rates as well as provide a brief description of the jobs of the assigned employees.

9.7. If WFG should receive time-based compensation, C shall undertake to promptly, i.e. no later than within 5 calendar days after receipt, sign off on submitted records to show C’s approval. If C should not approve of the presented records, C shall specify any concerns related to these records in detail within the aforementioned deadline. In this case, the Parties shall promptly attempt to clarify the matter.

9.8. If the Contract should end prematurely, WFG shall be entitled to the remuneration equivalent to the services completed by the termination date of this Contract.

 

10. Payment Terms

10.1. WFG invoices shall be due for payment within 30 calendar days after the invoice date, net. Payments shall be made exclusively via bank transfer to the account designated by WFG (Item 10.10); payments via bill of exchange and cheque shall not be accepted as modes of fulfilling the payment obligation.

10.2. If partial deliveries and/or partial services should be rendered, WFG shall have the option to charge for that portion of the order. Software licenses shall be billed in advance depending on the agreed upon billing cycle.

10.3. WFG shall have the option to demand advance payment for first orders. This shall in particular also apply to one-time projects or by non-provision of a credit limit by WFG’s credit insurance underwriter.

10.4. C shall pay all payment transaction fees.

10.5. If C’s credit rating should decline after the Contract has been executed or if WFG should retroactively find out about concerns about C’s creditworthiness, WFG shall have the option to demand the immediate settlement of all of WFG’s accounts receivable that have future due dates or for which payment deferrals have been agreed upon. Under the same conditions, WFG shall also have the option to demand advance payments or the provision of collateral for deliveries or services that have not yet been made or may rescind from the Contract. WFG shall have the right to offset any credit balances of the C against accounts receivable.

10.6. WFG shall apply any incoming payments at its discretion to any costs, interest and/or the oldest primary account receivable at the time.

10.7. C shall have the right to offset counter demands and withhold payments only if C’s account receivable is undisputed or has been found legally effective by a court of law. If payments are withheld, the counter demand must also have arisen from the same contractual relationship.

10.8. C shall be in default of all payments due as soon as a payment due date is exceeded; no formal notice of default shall be required. This shall include amounts due for other transactions. For the time of default, WFG shall charge 9 % interest above the current prime rate published by the European Central Bank as late payment interest on all accounts receivable that are still due at the time. This shall be without prejudice to the claiming of other rights.

10.9. If WFG should be compelled to pursue the payment of accounts receivable due from C in a court of law, all related granted discounts and cash discounts shall be void retroactively.

10.10. Payments made by C shall not be considered made until they are credited to WFG’s following accounts by the bank:

Commerzbank Mainz: code no.: 550 400 22, account: 205034200, BIC (SWIFT code):, IBAN no.: DE84 5504 0022 0205 0342 00

 

11. Force Majeure/Self-Delivery

11.1. If WFG should not receive goods and services in a timely or correct manner from WFG’s suppliers or sub-contractors required for the rendering of the deliveries or services we owe according to the Contract for reasons WFG is not responsible for and despite proper and sufficient inventory on hand prior to the execution of the Contract with C in the respective quantity and quality based on our goods and service supply agreement with the C (congruent inventory); or if incidents of force majeure should arise that last for periods that are more than insignificant (i.e. that last more than 14 calendar days), we shall notify C in a timely manner in text format. In such a case, WFG shall have the right to delay the delivery by the duration of the impairment or to rescind, in full or in part, from the Contract for the unfulfilled portion of the Contract if WFG has met its obligation to notify and has not assumed the risk of procurement or a delivery guarantee. This shall also apply if a default of delivery is already ongoing. Incidents of force majeure shall be strike, lock-outs, transportation issues WFG is not responsible for, or transportation bottlenecks, scarcity of energy or raw materials, orders imposed by public powers, operational impairs WFG is not responsible for, e.g. caused by fire, water or machine damage, theft, vandalism – and all other impairments which, objectively assessed, were not culpably created by WFG.

11.2. If a delivery date or delivery time has been agreed upon as binding and if the delivery date or time is exceeded due to incidents as defined in Item 11.1, C shall have the right to rescind from the Contract for the still unfulfilled portion of the Contract after setting a reasonable remedial period that has passed without producing results. This shall apply accordingly in the event that even if a fixed delivery date has not been agreed upon, C can no longer be reasonably expected to uphold the Contract. In the aforementioned cases, the C shall not have any further claims; in particular claims for damage compensation shall be excluded. 

 

12. Delivery Time, Partial Delivery

12.1. For binding delivery and service times to be legally effective, they must be agreed upon in writing. If non-binding or approximate delivery dates and times have been agreed upon (around, approximately, etc.), WFG shall make its best efforts to comply with them.

12.2. The delivery and service time shall not be activated until the date on which all aspects of the order, especially technical matters, have been completely clarified with C and all participation obligations have been met by C that are required for the performance of the Contract according to the Contract. This shall also include the making of an agreed upon down payment. However, at the earliest, the delivery and service time shall be activated upon the Contract has taken effect. This shall be subject to the objection of an unfulfilled contract.

12.3. If a participation act of C should be delayed after the start of the delivery and service time, regardless of the grounds, any of WFG’s performance dates and deadlines that hinge on the respective participation act, shall be deferred accordingly.

12.4. If C should be in default of acceptance or culpably breach any participation obligations, WFG shall have the right to claim any related damage compensation, including any added expenditures. WFG shall have the right to bill C for any resulting additional costs based on the effective WFG per day remuneration rates. This shall be without prejudice to any further claims. 

12.5. If C should demand modifications of the Contract affecting the delivery deadlines after Contract has taken effect, these deadlines shall be extended by reasonable scopes upon confirmation of the change by WFG.

12.6. Partial deliveries shall be permitted.

 

13. Shipment, Delivery, Transportation from Premises, Risk Transfer for Products

13.1. Unless otherwise agreed upon, the delivery terms for products shall be ex works - EXW (Incoterms 2010 | www.iccwbo.org | Incoterms) – excluding packaging. If pick-up or sending is owed, the goods shall travel at C’s risk and expense.

13.2. The delivery and return transportation of goods, materials, records, etc., made available by C, shall occur at C’s risk and expense, even if WFG takes action.

13.3. If C has not given WFG special shipping instructions, WFG may make delivery arrangements for the goods using modes of transportation that appear to be appropriate to WFG. The added costs incurred for different shipping methods of the C – even if freight prepaid arrangements have been agreed upon – shall be completely absorbed by C (e.g. express instead of standard delivery, different freight forwarder, air freight instead of sea freight, etc.).

13.4. WFG shall have the right but shall not be under any obligation to insure the goods against transportation damage at C’s expense. If (e.g. at C’s request) transportation insurance should be obtained, this shall not amend the risk allocation pursuant to Item 13.1 with regard to transportation and consequential damage.

13.5. If the shipment should be delayed vis-a-vis the agreed upon time at C’s request or for reasons C is responsible for (e.g. self-pick-up), WFG shall have the right to store the goods at C’s expense and risk and charge for it. In this case, the notification of readiness for shipment shall be deemed equivalent to actual shipment. Culpability of the C shall also be assumed if WFG is exercising its right to withhold because of C’s complete or partial payment default.

13.6. If agreed-upon pick-up by C should be owed, the risk of accidental loss or decline shall transfer to C upon hand-over of the products to be delivered to C; in the event that shipment by WFG should be owed, the risk shall transfer upon hand-over to the freight forwarder or any other enterprise designated to handle the shipment. However, it shall transfer to C at the latest, when the goods leave WFG’s works or warehouse or branch or the manufacturing plant of our agent unless shipment by WFG should be owed. The above shall apply accordingly to partial deliveries.

 

14. Title Retention, Attachments

14.1. Until all of WFG’s current and future accounts receivable arising from the Contract and an ongoing business relationship have been paid in full, title to the delivered goods shall remain with WFG (title retention goods). This shall also apply if individual accounts receivable are added to the current invoice and if the balance has been drawn.  

14.2. Title retention goods must not be pledged to third parties or assigned as collateral until they have been paid in full. C shall promptly notify WFG in text format if and to the extent third parties take action concerning WFG’s goods and/or if such action is imminent.

14.3. C shall have the right to resell title retention goods only subject to WFG’s prior written consent, if the account receivable arising from the resale is assignable and if C is not in default and has not suspended the making of payments. In this case, the following conditions shall apply.  (a) C herewith assigns all entitlements in their entirety, including any ancillary rights arising from the resale of title retention goods as collateral to WFG. WFG accepts this assignment. C’s obligations set forth in Item 14.2 shall also apply with regard to the assigned accounts receivable.  (b) Besides WFG, C shall remain authorized to collect the accounts receivable. WFG shall undertake not to collect the account receivable as long as C meets C’s payment obligations vis-a-vis WFG, does not default on payments, an application for the initiation of insolvency proceedings has not been filed and no other deficiencies exist with regard to C’s ability to perform the Contract. However, if this should be the case, WFG shall have the right to demand that C promptly discloses the assigned accounts receivable and the respective debtors, along with all information required for collection, that C hands over the related documentation and notifies the debtors of the assignment.

14.4. If C should fail to meet C’s obligations vis-à-vis WFG in a timely manner or if C’s asset situation should significantly decline, WFG, notwithstanding any other rights pursuant to the above provisions, shall have the right to demand the surrender of the title retention goods to WFG. If the title retention goods should be software products, all provided copies shall be surrendered. In this case, upon request, C shall confirm in writing to WFG that C has not held back any copies of the software and that all installations of the former have been irrevocably deleted from C’s systems or those of third parties. WFG shall have access to the title retention goods. The demand to surrender shall include a rescission from the Contract only if WFG makes an explicit declaration to that effect. If applicable, WFG may demand the assignment of rights C is entitled to vis-à-vis third parties with regard to the title retention goods.

14.5. If title retention goods have been processed or connected with other objects that are not the property of WFG, WFG shall be entitled to the generated co-ownership share in the new object at the ratio of the invoice value of the title retention goods and the other processed objects at the time of processing and/or connection to collateralize WFG’s entitlements pursuant to Item 14.1. If C should acquire sole ownership in the new object, the Parties agree that C shall grant to WFG co-ownership at the ratio of the value of the processed and/or connected title retention goods at the time of processing or connection and C shall store this property free of charge on WFG’s behalf

14.6. If the title retention goods should be sold with other goods, regardless of whether they are processed or connected with these other goods, the assignment agreed upon in Item 14.3 shall apply only up to the amount of the invoice value of the title retention goods that are sold along with other goods.

14.7. C shall promptly notify WFG of any execution measures or other impairments of WFG’s title retention goods by a third party, including those of the accounts receivable assigned to WFG and shall hand over the required documents. If the third party should not be in a position to reimburse to WFG the court and out-of-court costs of a law suit pursuant to Art. 771 ZPO (German Civil Proceedings Code), C shall be liable for the loss incurred by WFG.

14.8. C shall undertake to insure title retention gods and goods pursuant to Item 14.5 at C’s expense against damage caused by fire and water, theft, robbery and vandalism and shall protect the goods in compliance with common industry practices.

14.9. If deliveries are made to foreign countries and laws in the import country do not permit the aforementioned title retention provisions, but seller is permitted to reserve other rights inherent in the goods, WFG shall have the right to exercise all of these rights. C shall undertake to assist with all permitted actions WFG takes to protect WFG’s title rights or other rights in lieu of the former with regard to the delivery object.

14.10. Upon WFG’s request, C shall grant a collateral mortgage pursuant to Articles 650a, 650e BGB in favour of WFG. The costs and fees incurred shall be for C’s account.

 

15. Obligation to Inspect and Give Notice of Defects

15.1. C shall promptly and within no more than 5 calendar days after pick-up in the case of ex works or ex warehouse location shipments, and otherwise after delivery, report any visible material defects of the goods. C shall notify WFG of concealed material defects promptly upon their discovery and at the latest within the applicable warranty’s limitation period pursuant to Item 20.10. Failure to give notice of defects in time shall rule out any entitlement of C arising from the breach of duty because of material deficiencies. This shall not apply in cases of intentional, grossly negligent or malicious acts by WFG or in cases of personal injury, damage to life or health or in cases where a warranty for the freedom from deficiencies has been assumed or in cases of procurement risks pursuant to Art. 276 BGB or other liability facts mandated by law. This shall be without prejudice to the statutory special provisions if the goods are ultimately delivered to a consumer (supplier subrogation).

15.2. In all cases, the notice of defects shall be filed in writing providing concise information on the complaint. Software deficiencies shall furthermore be claimed by providing verifiable descriptions of the error symptoms, if possible corroborated by written records, hard copies or other documents making it possible to visualize the deficiencies (error reports). The notice of defects shall make it possible to reproduce the error.

 

16. Acceptance

16.1. Completed works must be accepted. Services, in particular consulting and support services, are not accessible for acceptance since they are services, unless the requirement to accept the services has been expressly stipulated.

16.2. The acceptance of services related to the compilation and adaptation of software/components shall be performed pursuant to the following provisions:

  • WFG shall notify C of the readiness for acceptance of the respective service or part of a service in text format.
  • Promptly and at the latest within a period of 5 calendar days upon receipt of the notice, C and WFG shall conduct an acceptance test for a period of at least 5 and no more than 10 calendar days in accordance with the agreed upon acceptance and testing plan set forth in this Contract. Upon C’s or WFG’s request, the acceptance test shall be reasonably extended beyond the originally planned period if necessary.
  • After the successful performance of the acceptance test, C shall promptly declare its acceptance in writing. The acceptance test shall be deemed successfully performed, if the service and/or the parts of services meet the contractually mandated requirements as far as all key issues are concerned.
  • C shall provide, free of charge, the prerequisites for the performance of the acceptance test and those described in the acceptance and test plan; in particular data, work stations, devices, etc.
  • C shall undertake to promptly notify WFG in writing if C becomes aware of deviations from the contractually defined requirements during the acceptance test.
  • The following error classes shall be used for software services to distinguish between errors of the service or part of a service to be accepted:
    Error Class 1: The result of the error is that the entire system or the part of the system cannot be used.
    Error Class 2: The error causes significant limitations of use as far as key functions are concerned, which cannot be bypassed by suitable measures for a reasonable time the C can be expected to tolerate.
    Error Class 3: All other errors
  • C shall have the right to refuse to accept services only on the grounds of errors in Error Classes 1 and 2. Errors in Error Class 3 do not impair the acceptability of the service but shall be eliminated in conjunction with deficiency claims. They shall be recorded as deficiencies in the written acceptance declaration.
  • A written log shall be compiled at the end of the acceptance test, which shall be signed by both Parties. The log shall describe the found errors, divided by Error Classes as well as list the grounds for the refusal of acceptance, if any.
  • If the acceptance should fail, WFG shall promptly eliminate the acceptance preventing deficiencies and shall once again present the services for acceptance. If the acceptance should fail again, C shall be entitled to the other statutory rights applicable to deficiencies.

16.3. If the C should fail to promptly declare acceptance, WFG shall have the option to set a deadline of one week for the making of this declaration in text format. The acceptance shall be deemed concluded if the C does not specify grounds for the refusal to accept in writing by that deadline.

16.4. If acceptance is not possible because of the condition of the service, the rendering of the service shall take place instead of the acceptance.

16.5. WFG shall have the right to withhold services if C should be in default of accepting services or parts of services or payment for accepted services.

 

17. Handover and Installation of Software

17.1. In accordance with the contractual agreements, to exercise the granted licensing and exploitation rights, WFG shall provide C with the software/components either by

  • Installing the above on C’s computer and by delivering the required number of duplicates of the software/components (the licensing object) generated by WFG in a machine readable format, at C’s discretion either on a data medium commonly used at the time or via remote data transmission or
  • Saving the above on a computer network made available by C or a third party designated by C via remote data transfer or
  • Saving the above on a WFG or a WFG sub-contractor’s computer and make available the contractually agreed upon services to C (e.g. a web interface or compatible interfaces for administration by C) (WFG-Cloud).

17.2. If the license object should be installed by WFG on C’s computer, it shall be C’s responsibility to provide the system environment in accordance with the contractual requirements. In this case, C shall inform WFG of the respective installation locations of the copies of the licensed object in text format. In any event, C shall notify WFG of any later modification of the installation locations in text format.

 

18. Orientation and Training

18.1. WFG shall provide orientation training for the use of the programmes and the handling of the affiliated tools to the staff designated by C during the period stipulated in the time schedule and workflow plan to be separately compiled. The Parties shall separately define the location, type and scope of the orientation training.

 

19. Intellectual and Commercial Property Rights

19.1. Upon conclusion of the Contract, WFG shall reserve all intellectual property rights affiliated with the product(s) to be delivered. WFG shall merely grant C a non-exclusive (simple) licensing right for all of its potential property rights inherent in the products and database rights.

19.2. The simple licensing and exploitation right shall be restricted to the contractually defined purposes of use (“Purpose of Use”).

19.3. If software (computer programs, EDP processes, EDP data, content for portals and market places) should be delivered, WFG shall grant C herewith the simple, non-transferable license, which shall be unrestricted in terms of time and geography, to use, make copies of, process or decompile the software (the “Licensed Object”) in accordance with these provisions. Furthermore, the content for portals and market places may be made available to the public in accordance with the Purpose of Use by way of publication.

19.4. The simple right to make copies of the software shall be limited to the installation of the software in a computer system C owns directly or that is owned by a third party designated by C (a host of C) or to access to a web interface/provision of an interface in accordance with the contractual obligations to fulfil the Purpose of Use and to any duplication required to load, display, run, transfer and save the software (the “Licensed Object”) as well as the right to generate a backup copy by a person authorized to do so pursuant to Art. 69d Sect. 2 UrhG (German Copyright Act).

19.5. The simple right to process the software shall be limited to the maintenance or reinstatement of the agreed upon functionality.

19.6. The simple right to decompile the software shall be granted only subject to the condition set forth in Art. 69e Sect. 1 No. 1 through 3 UrhG and in the scope of  Art. 69e Sect. 2 No. 1 through 3 UrhG.

19.7. Upon request and if a legitimate interest exists, C shall permit WFG or a third party commissioned by WFG to verify whether the use of the software remains within the confines of the rights granted herein; C shall assist WFG with the performance of such a verification free of charge to C’s best ability.

19.8. WFG shall reserve all rights, including but not limited to intellectual property rights inherent in all quotation and design documents provided to C by WFG (such as figures, sketches, created designs, CAD and 3D drawings, circuit diagrams, drafts, graphics, decorations, models, films, photos, design records, costings, cost estimates, measuring logs, instructions, manuals, templates, tools, EDP data media and other documentation). C shall acquire (co-) title in quotation and design documents only if this has been expressly agreed upon. C shall be permitted to use the above described and provided objects only within the scope of the fulfilment of C’s contractual obligations.

19.9. Upon WFG’s request, C shall return, archive or destroy all objects as set forth in Item 19.8 at C’s expense and risk. In the event of destruction, C shall provide evidence of the destruction. Sharing with third parties as well as duplication shall be permitted only subject to WFG’s express written consent, unless the rights have been expressly transferred in writing by WFG.

19.10. If costs for tools, installations, templates, programmes, lithographs and graphic data should be listed in the quotation and order documentation, they shall principally be understood as pro-rated across the entire anticipated lifecycle of the respective object. Possible co-ownership rights of the C in these objects may thus only be claimed upon determination and complete payment of the total costs. 

19.11. WFG shall not assume any guarantees for the usability of the tools, installations, templates, programmes, lithographs and graphic data on C’s or third parties’ systems.

19.12. If third party rights (e.g. registered trademarks, trade names, distinctive logos) are obviously in conflict with the production and/or purpose compliant use of the work results, it shall be C’s responsibility to obtain the right of possession and use, etc., of the products to be delivered or delivered (e.g. advertising systems, software/components of C’s franchise provider) from the holder of such rights (e.g. based on a franchising agreement). WFG shall have the option to demand that C provide evidence that the holder of the right has granted C the respective licensing rights.

19.13. C assures WFG that C shall not infringe upon any of WFG’s or third parties’ intellectual property rights, and the latter in particular if C provides templates/data (Item 3.3.1) or if C is responsible for the possession of the required licenses pursuant to Item 19.12. The Parties shall promptly coordinate with each other any claims raised by third parties. C shall indemnify WFG against any related claims of third parties, including comparable claims, e.g. those arising from unfair competition and shall hold WFG harmless and either eliminate the conflicting rights of the third party or modify the provided templates/data in such a manner that its purpose compliant use no longer infringes the claimed rights. Any related costs shall be for C’s account.

19.14. If a third party should raise claims vis-à-vis C because of the infringement of property rights, which C is not required to protect pursuant to Item 19.12 and if this should impair or prohibit the use, WFG shall assume liability as follows, notwithstanding the rights of C pursuant to Item 20.0: At its expense, WFG may either alter or replace the service in such a manner that it does not infringe upon the property right but largely provides the agreed upon functional and performance features in a manner reasonably acceptable to C or WFG may indemnify the C against claims raised by the holder of the property right. If WFG should not be able to implement remedial fulfilment or if this should only be possible under disproportionate conditions, WFG shall have the right to accept the return of the affected services against payment of a refund of the compensation paid. C shall grant WFG a reasonable suspension period.

19.15. WFG shall have the right and obligation to place a manufacturer’s notice on the goods.

 

20. C’s Deficiency Rights

20.1. The statutory provisions shall govern C’s rights in cases of material and legal deficiencies (including wrong deliveries and delivery shortages as well as improper installation or deficient installation instructions), unless otherwise agreed upon in these General Terms and Conditions. This shall be without prejudice in all cases to the mandatory statutory special provisions applicable to ultimate delivery of goods to a consumer (recovery of damage compensation from the supplier). Deficiency claims of the C shall be contingent upon C having met the obligations to inspect and give notice of defects (Item 15.0).

20.2. Changes or additions to the delivered object, made directly by C or by C through third parties, shall void the deficiency claims of C, unless C proves that the change or addition was not the cause of the deficiency. WFG shall also not assume liability for deficiencies resulting from the improper operation, storage, maintenance or servicing, improper operating conditions, the use of incompatible operating material or excessive wear and tear by C or extraordinarily aggressive environment conditions. Handling shall be deemed improper if it does not meet the product specific standard requirements. C is advised to comply with the care and maintenance instructions of WFG and/or the manufacturer.

20.3. If the delivered object should be deficient, WFG shall have the option to choose whether the deficiency will be eliminated directly by WFG or, at WFG’s expense, by a third party commissioned by WFG (remedial action) or by exchanging the deficient part with a defect free part or by delivering an object that is free of deficiencies (replacement delivery). As an alternative, WFG may grant C the right to perform the remedial action directly or through a third party at WFG’s expense. This shall be without prejudice to WFG’s right to refuse the remedial action under the statutory provisions.

20.4. Remedial action for software deficiencies may also be taken by handing over or installing a new version of the programme or a work-around. If the deficiency does not impair the functionality or if it impairs it only insignificantly, WFG, subject to the exclusion of additional deficiency claims, shall have the option to eliminate the deficiency by delivering a new version or an update in conjunction with its version, update and upgrade planning.

20.5. If the deficiency is the result of errors in a product from a supplier and if the former does not take action as an agent of WFG, and WFG is merely passing on a third party product to C, C’s deficiency claims shall initially be limited to the assignment of WFG’s deficiency claim entitlements vis-à-vis the supplier to C. This shall not be the case if the deficiency is the result of the improper handling of the supplier’s product by C. If C should be unable to claim C’s deficiency entitlements vis-à-vis the supplier in an out-of-court effort, this shall be without prejudice to WFG’s subsidiary liability for deficiency claims.

20.6. WFG shall have the right to refuse to perform remedial action until the remuneration agreed upon minus an amount totalling twice the costs to be incurred for the elimination of the deficiency has been paid by C. Incidentally, C shall undertake to accept and receive the contract compliant service.

20.7. C shall give WFG the time and opportunity required to perform the owed remedial action. If a replacement delivery should be made, C shall return the deficient goods to WFG in accordance with the statutory provisions, unless WFG provides other directions.

20.8. If the remedial action has failed or if the reasonable deadline to be set by C has expired without producing results or if such a deadline is redundant based on the statutory provisions, C may rescind from the Contract in accordance with the statutory provisions, reduce the purchase price or demand damage compensation and the reimbursement of expenses. If the deficiency is insignificant, C shall, however, not have the right to rescind.

20.9. C’s entitlement to damage compensation and/or reimbursement of expenses incurred in vain shall only apply pursuant to Item 21.0 even in the event of deficiency and shall be otherwise excluded.

20.10. In deviation from Articles 438 Sect. 1 No. 3, 650, 634a Sect. 1 No. 1 BGB, the general limitation period for claims arising from material and legal deficiencies shall be one year as of the date of risk transfer, unless otherwise agreed upon below. If an acceptance inspection has been agreed upon, the limitation period shall begin upon acceptance or when WFG has given C a reasonable deadline for acceptance upon completion and C has not refused the acceptance by that deadline citing at least one deficiency upon expiry. The short limitation period as defined in Sentence 1 (Item 20.10) shall not apply to damage compensation claims arising from a guarantee, the assumption of the procurement risk as defined in Art. 276 BGB, entitlements arising from personal injuries, damage to life or health, malicious, intentional or grossly negligent acts committed by WFG or in the cases set forth in Articles 478 Sect. 1, Sect. 3, Art. 445b BGB (recourse within the chain of delivery) or if the law mandates a longer limitation period. The aforementioned provisions are not affiliated with a reversal of the burden of proof. If the delivered product is a structure or an object, which based on its common use has been utilized for a structure and has caused such structure’s deficiency, or if WFG, in connection with a structure, is rendering work services as defined in the BGB (such as planning or monitoring services for a structure), the limitation period shall be in compliance with the statutory provisions, i.e. 5 years as of delivery (Articles 438 Sect. 1 No. 2, 635 Sect. 1 No. 2 BGB).

20.11. If the Parties have agreed upon an acceptance inspection and C refuses the latter citing a deficiency, C shall, upon WFG’s request, participate in the joint determination of the condition. Article 650g Sect. 1 - 3 BGB shall apply accordingly.

20.12. If a prolongation of the contractual or statutory warranty periods has been agreed upon (extended warranty), C shall only be in a position to effectively claim the extension of the warranty if C proves that the delivered and installed products have been subjected to maintenance at least in a regular cycle of 12 months as of the date the service was rendered. Without evidence of such maintenance, the warranty period pursuant to Item 20.10 shall remain unchanged.

 

21. Liability

21.1. Unless otherwise mandated in these GTC, in particular in the following provisions, WFG shall assume liability pursuant to the statutory provisions if contractual or non-contractual obligations should be breached.

21.2. Regardless of the legal grounds, WFG shall assume liability for damage compensation or cost reimbursement ONLY:

  • For its own intentional or grossly negligent breaches of duty and intentional or grossly negligent breaches of duty committed by statutory representatives and agents;
  • For damage arising from more than insignificant breaches of cardinal contractual obligations (obligation to protect significant contractual legal positions of the C, which C must be afforded by the Contract based on its content and purpose or that have to be met to make the proper performance of the Contract even possible and into which C may usually place trust and has placed trust. If WFG or its agents should be responsible for only minor negligence, the liability shall be limited to the contract typical and foreseeable damage, which shall be a maximum of triple the net contract amount for each damage incident;
  • In the event of personal injury, damage to life and health, also resulting from acts committed by statutory representatives and agents – also in cases of minor negligence;
  • In cases of default, if a fixed delivery and/or performance date has been agreed upon,
  • If WFG has assumed a warranty for the quality of the goods or has assumed responsibility for the presence of success resulting from the performance or has assumed a procurement risk as defined in Art. 276 BGB;
  • If liability is based on the German Product Liability Act or other mandatory liability facts.

21.3. If WFG’s liability for damage compensation has been excluded or limited, the same shall also apply to the personal liability for damage compensation of our employees, representatives and agents.

21.4. Item 20.10 shall apply accordingly to C’s entitlements to damage compensation or reimbursement of expenses arising from this contractual relationship.

 

22. Assignment

22.1. The assignment of any entitlements due from WFG shall be contingent upon our written consent.

 

23. Non-Disclosure, Data Privacy

23.1. C shall not be permitted to share with or make accessible to third parties any of WFG’s business secrets C becomes aware of and that are designated as such or that are identified as such in any other manner during the term of the Contract and after its termination. C shall ensure that C’s employees also comply with this obligation.

23.2. Documents that concern secret business transactions, WFG has entrusted C with, shall be returned by C promptly upon fulfilment of the contractual purpose and no later than within two weeks after the termination of the Contract.

23.3. WFG processes personal data of C and C’s employees as defined in the General Data Protection Regulation (GDPR), such as last name, first name, address information, telephone, fax, e-mail data, banking information and credit rating data for the fulfilment and performance of the Contract made with C. Beyond the fulfilment of the contractual obligations, WFG processes personal data to protect legitimate interests of WFG, e.g. for the claiming of and/or the defence against legal claims, to safeguard the IT operations of WFG as well as for measures related to business and risk management and for marketing purposes. Moreover, it is possible that personal data will be processed based on the express consent of the data subjects. Further data protection law related information pursuant to Art. 13 GDPR as well as information about the rights of data subjects can be found in our memorandum“Information on data processing in accordance with Art. 13 EU-GDPR"

If the subject matter of the Contract is the provision of software/components on a WFG-Cloud (WFG is the provider of services for the operation of an IT infrastructure, including software, maintenance of the infrastructure and software services, connection of the former to the Internet for use by the C, archiving of data, etc.), the Parties shall verify whether WFG is a contract processor for C as defined in the GDPR and if this should be the case, they shall enter into a separate data processing agreement pursuant to Art. 28 Sect. 3 GDPR.

 

24. Governing Law, Place of Jurisdiction, Severability Clause

24.1. All legal relationships with WFG shall be governed exclusively by the laws of the Federal Republic of Germany. The applicability of the UN Convention on the International Sale of Goods (CSIG) shall be excluded.

24.2. If C should be a merchant, legal entity under public law or a special fund under public law, WFG’s business domicile shall be the place of jurisdiction. However, WFG shall have the option to file suit against C also at the competent court at C’s domicile. This shall be without prejudice to superior statutory provisions, in particular exclusive jurisdictions.

24.3. The ineffectiveness of individual provisions of this Contract shall not affect the effectiveness of the remaining provisions. In such a case, the Parties shall undertake to arrive at an arrangement on effective provisions that meet the business intentions of the ineffective provisions as closely as possible. The same shall accordingly apply to the bridging of any gaps in this Contract.

 

Customer Information

2011/65/EU (RoHS 2)

The RoHS (Restriction of the use of certain Hazardous Substances) is an EU Directive that aims at restricting the use of certain hazardous substances in electrical and electronic appliances in all EU member states. WFG warrants that the products distributed by WFG meet the requirements of the RoHS.

WEEE Directive 2012/19/EU and ElektroG [German Electrical and Electronic Equipment Act]

The products delivered by WFG are not covered by the scope of the WEEE Directive, since they are products used in “fixed locations.” If the WEEE Directive or the “ElektroG” should apply to these products, WFG shall absorb the recycling costs for the electrical components of the products; C shall absorb the costs for the removal and dismantling as well as the return transport to WFG.

 

Version: 01.08.2020/drc