The General Terms and Conditions of Weber Ultrasonics AG consist of two parts: the “General Terms of Delivery” and the “General Terms of Purchase.”
For legibility reasons, the male form shall be used exclusively with respect to any reference to a person. It shall refer, however, to persons of any sex (m/f/d).
Terms of Delivery
I. OFFER, CONCLUSION OF CONTRACT
1. All offers, deliveries and services (hereinafter referred to as “Deliveries”) made by Weber Ultrasonics AG shall exclusively be subject to the “General Terms of Delivery” (hereinafter also referred to as “Contractual Terms”) provided below. Weber Ultrasonics AG does not recognize any terms of the customer that deviate or conflict with these Contractual Terms unless it has expressly consented to these in writing. Even if Weber Ultrasonics AG, fully aware of these terms of the customer that deviate or conflict with these Contractual Terms, completes the delivery without any reservation, this cannot be interpreted as consent; these Contractual Terms shall apply regardless.
2. The offers made by Weber Ultrasonics AG are non-binding. Placed orders do not become binding until they have been confirmed by Weber Ultrasonics AG in writing.
3. These Contractual Terms are superseded by other individual, written agreements made with the customer for a given case (including side agreements, addenda and amendments).
4. Weber Ultrasonics AG reserves the right of ownership to all cost estimates, drawings and other records to the extent these are protected under copyright law. They may not be made available to third parties.
5. 5. The underlying contract as well as these Contractual Terms shall only apply vis-à-vis a corporate entity, a legal entity under public law or a special asset under public law pursuant to Sec. 310 para. 1 clause 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
II. RATES AND TERMS OF PAYMENT
1. The rates are to be understood ex works excluding packaging and transport costs plus the applicable statutory value added tax.
2. If Weber Ultrasonics AG assumed responsibility for the installation or assembly and if noth-ing else has been agreed upon, the customer shall bear, in addition to the compensation agreed upon, all required ancillary costs such as travel expenses, cost for the transport of tools and personal luggage as well as daily allowances.
3. Unless agreed upon to the contrary, the purchase price shall become payable within 10 (in words: ten) days after invoicing. Default interest in the amount of 9% above the respective annual prime rate shall be charged. The right to assert higher default damages shall remain reserved.
4. Payments shall be made free of charge to the payment authority of Weber Ultrasonics AG.
5. The customer may only offset receivables that are undisputed, ready for a decision in a pending lawsuit or that have been upheld by a court of law.
III. RETENTION OF TITLE
1. Weber Ultrasonics AG shall retain the title to the shipments until all current and future receivables of Weber Ultrasonics AG from the underlying contract and an ongoing business relationship (secured claims) have been paid.
2. The shipments subject to a retention of title may neither be pledged to third parties nor provided as collateral until the secured claims have been paid in full. The customer must promptly inform Weber Ultrasonics AG in writing if and to the extent third parties have gained access to shipments owned by Weber Ultrasonics AG.
3. If the customer acts in a non-contractual manner and in particular if the customer does not make a payment that is due, Weber Ultrasonics AG shall be entitled to withdraw from the contract in accordance with the legal provisions and demand the surrender of the shipment on the basis of the retention of title and the withdrawal. If the customer does not make the payment that is due, Weber Ultrasonics AG may assert these rights only if it has previously provided the customer with a reasonable grace period to make the payment, which has lapsed unsuccessfully, or if the setting of such a grace period is not required under the statutory regulations.
4. The customer shall be entitled to resell and/or process the shipments under retention of title in the due course of its business. In this case, the following provisions shall apply in addition.
5. The retention of title shall extend to the full value of any products created by a processing, mixing or combining of the shipments from Weber Ultrasonics AG with Weber Ultrasonics AG being considered the manufacturer. If retention of title of a third party remains in effect during a processing, mixing or combining with third-party shipments, Weber Ultrasonics AG shall gain joint ownership in the share of the invoiced values of the processed, mixed or joined products. In all other aspects, the same applies to the resulting product as for the shipments under retention of title.
6. The customer hereby assigns any claims against third parties arising from the resale of the shipment or the product in their totality or in the amount of the corresponding joint ownership share of Weber Ultrasonics AG according to the paragraph above so as to protect the claims of Weber Ultrasonics AG. Weber Ultrasonics AG hereby accepts the assignment. The responsibilities of the customer stated in paragraph 2 shall apply to the assigned claims as well.
7. The customer shall continue to remain entitled to collect the claim in addition to Weber Ultrasonics AG. Weber Ultrasonics AG undertakes not to collect the claim as long as the customer meets its payment obligations toward Weber Ultrasonics AG, is not in default of payment, no application is filed for the opening of insolvency proceedings and there is no other failure to perform either. If this is the case, however, Weber Ultrasonics AG may demand that the customer discloses the assigned claims and their debtors to Weber Ultrasonics AG, provides all information required for collection purposes, provides the respective records and informs the debtors (third parties) of the assignment.
8. If the exploitable value of the collateral exceeds the claims of Weber Ultrasonics AG by more than 10 %, Weber Ultrasonics AG shall release the customer’s collateral at the discretion of Weber Ultrasonics AG.
IV. DELIVERY DEADLINES, DEFAULT
1. Compliance with delivery deadlines is subject to the timely receipt of all records to be provided by the customer, the necessary approvals and releases, in particular of plans, as well as compliance with the terms of payment that were agreed upon as well as all other duties the customer may have. If these requirements are not met in a timely manner, the deadlines shall be extended accordingly; this shall not apply if Weber Ultrasonics AG is responsible for the delay.
2. In the event of labor disputes or unforeseeable impairments that are outside the sphere of influence of Weber Ultrasonics AG, the delivery period shall be extended accordingly. This shall apply even if the impairment arises during an already existing delay.
3. If the Customer incurs damages due to a delay for which Weber Ultrasonics AG is responsible, especially in connection with a fixed date agreed upon with Weber Ultrasonics AG, the Customer shall be entitled to claim compensation. In the case of slight negligence, said compensation shall amount to 0.5 % for each week the date is exceeded but cannot exceed the maximum of 5 % of the net payment amount for the shipment that was not made in a timely manner due to the delay. Notwithstanding clause 12. para. 3 of these Contractual Terms, no further damages may be claimed due to a delay caused by slight negligence.
4. If so requested by Weber Ultrasonics AG, the Customer shall be required to state within a reasonable period of time whether it is withdrawing from the contract due to the delayed shipment or insist on receiving the shipment.
5. If the shipment or delivery is delayed at the Customer’s request by more than one month after the notice of shipment readiness, the Customer may be charged a storage fee in the amount of 0.5 % of the price of the products to be delivered for each started month, but said fee cannot exceed 5%. The contracting parties are free to demonstrate higher or lower storage costs.
V. TRANSFER OF RISK
1. The risk shall transfer to the Customer even in the case of a freight paid shipment:
(a) For shipments without installation or assembly, once they have been shipped or picked up. Weber Ultrasonics AG shall insure the shipments against customary transport risks at the Customer’s request and expense;
(b) For shipments with installation or assembly, on the handover date at its own facilities or, if agreed upon, after a correct test run.
2. The risk shall transfer to the customer if the shipment, delivery, start, performance of the installation or assembly, the handover at its own facilities or the test run are delayed for reasons for which the Customer is responsible or if the Customer is in default of acceptance for other reasons.
VI. INSTALLATION AND ASSEMBLY
Unless otherwise agreed upon in writing, the following shall apply for the installation and assembly:
1. The Customer shall assume the following and provide in a timely manner at its own expense:
(a) all ground, construction and other non-industry ancillary work including the required technicians and unskilled workers, building materials and tools,
(b) the consumable items and materials such as scaffolding, hoisting devices and other de-vices, fuels and lubricants required for the assembly and start of operations,
(c) energy and water at the place of use including the connections, heating and lighting,
(d) sufficiently large, suitable, dry and lockable rooms at the assembly location for the stor-age of the machine parts, equipment, materials, tools, etc., and for the assembly per-sonnel suitable work and recreational rooms including suitable sanitary installations; in addition, the Customer must take steps at the construction site for the protection of the property of Weber Ultrasonics AG and the assembly personnel that it would take to pro-tect its own property,
(e) protective closing and protection devices that are required due to special circumstances at the assembly location.
2. Prior to the start of the assembly work, the Customer must provide the necessary information about the location of hidden electricity, gas and water lines or similar installations as well as the necessary structural information without being requested to do so.
3. Prior to the start of the installation or assembly, the materials and items required for the start of the work must be available at the installation or assembly location, and all work that must be performed prior to the start of the assembly must be advanced to such a degree that it is possible to begin with the assembly as agreed upon and continue it without interruptions. The access paths and the installation or assembly location must be level and cleared.
4. If the installation, assembly or start-up is delayed by circumstances for which Weber Ultrasonics AG is not responsible, the Customer must, within reason, bear the costs for the wait and additional trips required by Weber Ultrasonics AG or the assembly personnel.
5. The Customer shall promptly certify to Weber Ultrasonics AG the hours worked by the assembly personnel as well as the termination of the installation, assembly or start-up on a weekly basis.
6. If, following the completion, Weber Ultrasonics AG asks for an acceptance of the shipment, the Customer must perform said acceptance within two weeks. Failure to do so shall mean that acceptance has taken place. Acceptance shall furthermore be deemed as having taken place if the shipment is being used, if applicable after the end of a test phase that was agreed upon.
The Customer may not refuse the shipments due to minor defects.
VIII. GENERAL WARRANTY
1. The general warranty period of Weber Ultrasonics AG is 12 months.
2. The warranty shall only be valid if the purchased item is operated in accordance with the respective manual.
3. The warranty period shall begin with the sale of the first piece of equipment. A repair does not automatically mean that the warranty period for the entire piece of equipment is extended. Subsequent warranties are only offered for repaired and replaced parts.
4. The warranty only extends to components furnished by Weber but not to third-party components or third-party process controls.
5. Weber Ultrasonics AG uses special General Terms and Conditions for Warranties offered by individual business areas according to clause 9. of these General Terms and Conditions. The special General Terms and Conditions for Warranties are declaratively provided in the context of the respective offer and shall apply in addition to the provisions set forth here in clause VIII. para. 1.
6. Individual agreements between the contracting parties in the context of the offer are possible but must be contractually documented.
IX. SPECIAL WARRANTIES FOR INDIVIDUAL BUSINESS AREAS
1. Cleaning – Plate & Submersible Transducers
(a) Plate & Submersible Transducers:
The warranty period is 5,000 operating hours but no more than 24 months from the delivery date. Damage caused by cavity erosion and improper handling is exempt. If stainless steel is exposed to concentrations of halogen of more than 40 ppm, it may corrode! In general, all stainless steel is at risk for pitting corrosion.
The warranty period is 5,000 operating hours but no more than 24 months from the delivery date. A suitable installation location is important in terms of humidity, cleanliness and ambient temperature.
(c) Housings and Cables:
The warranty period is 24 months from the delivery date. Damage caused by unusual and/or improper handling is excluded.
2. Cleaning Rod Transducers
(a) Rod Transducers and Converters:
The warranty period is 6,000 operating hours but no more than 24 months from the delivery date. Damage caused by cavity erosion and improper handling is exempt. If stainless steel is exposed to concentrations of halogen of more than 40 ppm, it may corrode! In general, all stainless steel is at risk for pitting corrosion. .
The warranty period is 6,000 operating hours but no more than 24 months from the delivery date. A suitable installation location is important in terms of humidity, cleanliness and ambient temperature.
(c) Housings and Cables:
The warranty period is 24 months from the delivery date. Damage caused by unusual and/or improper handling is excluded.
(a) Welding and Cutting Machines/Systems:
The warranty period is 24 months from the delivery date. Damage caused by unusual and/or improper handling is excluded.
The warranty period is 24 months from the delivery date. A suitable installation location is important in terms of humidity, cleanliness and ambient temperature.
(c) Housings and Cables:
The warranty period is 24 months from the delivery date. Damage caused by unusual and/or improper handling is excluded.
The warranty period is 12 months from the delivery date.
Please only use cooling air that is free from oil and water.
(e) Tools (Sonotrodes, Mountings, Anvils):
The warranty period is 6 (in words: six) months subject to a technical inspection at the Weber premises. It does not cover wear or unusual and/or improper handling.
X. MATERIAL DEFECTS
1. Weber Ultrasonics AG shall, at its equitable discretion, either repair or replace all parts that show material defects within the warranty period stated in clause VIII. and/or clause IX. since the delivery due to a circumstance that arose prior to the transfer of risk. Such defects must be promptly reported to Weber Ultrasonics AG in writing as soon as they are uncovered.
2. Claims for material defects regularly expire within the warranty period stated in clause VIII. from delivery. This regular expiration may be waived or amended through individual agreements between the contracting parties in the context of the offer.
3. The time limits stated in clause VIII. and/or clause IX. of these Contractual Terms shall not apply to a defect in a structure or items for a structure and if these caused the material defect. In deviation from clause VIII. and/or clause IX., the statutory time limits shall also apply in the case of entrepreneurial recourse pursuant to Sec. 478, 479 BGB.
4. A service swap due to a material defect is only made subject to a technical clarification and does not automatically imply an extension of the warranty period or a remediation of the material defect free of charge.
5. No liability is assumed for damage caused by wear.
6. No warranty is provided for damage caused by the following:
- Unsuitable or improper use in deviation from the contractually agreed use stated in the respective operating manual
- Faulty assembly or start-up by the Customer or third parties as well as damage to the item or other items resulting from this,
- In the case of a wrong or negligent treatment of the shipments, especially in consideration of the operating instructions available
- In the case of excessive use and
- In the case unsuitable operating materials and substitute materials are used
7. Upon having communicated with Weber Ultrasonics AG, the Customer must provide Weber Ultrasonics AG with the required time and opportunity to make all repairs or ship replacements that are deemed necessary at its equitable discretion. Otherwise, Weber Ultrasonics AG shall be released from the liability for defects.
8. The place of the defect remediation shall be Karlsbad, Germany. The Customer shall only be entitled to remedy the defect itself or to have it remedied by a third party and to demand from Weber Ultrasonics AG a reasonable reimbursement of its costs in urgent cases where the operational safety is at risk, of which Weber Ultrasonics AG must be notified immediately, or if Weber Ultrasonics AG is in default with the remediation of the defect.
9. The Customer shall only have further claims in cases of clause XII. para. 3 of these Contractual Terms.
10. Used delivery items are sold without a warranty for material defects. This exclusion shall not apply to claims according to clause XII. para. 3 of these Contractual Terms
XI. COMMERCIAL PROPERTY RIGHTS, COPYRIGHTS, DEFECTS OF TITLE
1. Unless agreed upon to the contrary, the shipments made by Weber Ultrasonics AG in Germany shall be free from any third-party commercial property rights or copyrights. In the event a property right is infringed nevertheless, Weber Ultrasonics AG shall either obtain a respective license from the third party or modify the shipment so that the respective property right is no longer infringed. If Weber Ultrasonics AG is unable to do so at reasona-ble conditions, both the Customer and Weber Ultrasonics AG shall be entitled to withdraw from the contract.
2. In all other aspects, the provisions of clause 13. of these Contractual Terms shall apply in the event of defects of title. The Customer only has a claim, however, if the Customer promptly informs Weber Ultrasonics AG about any claims asserted by third parties in writing, does not acknowledge an asserted infringing act either directly nor indirectly, if Weber Ultrasonics AG retains all opportunities of a defense without limitation, if the legal in-fringement is not due to the fact that the Customer modified the shipment or used it in a non-contractual manner, or that the defect of title is due to an instruction issued by the Customer.
XII. IMPOSSIBILITY, AMENDMENT OF CONTRACT, OTHER LIABILITY OF WEBER ULTRASONICS AG
1. If shipment is impossible, the Customer shall be entitled to demand damages unless Weber Ultrasonics AG is not responsible for the impossibility. The Customer’s claim for damages is, however, limited to 10 % of the value of the part of the shipment that cannot be taken into the relevant operation due to the impossibility. This limitation shall not apply to the extent strict liability applies in cases of intent, gross negligence or an injury to life, body or health; this is not associated with a change to the burden of proof to the detriment of the Customer. The Customer’s right to withdraw from the contract shall remain unaffected.
2. If unforeseeable events as specified in clause IV. para. 2 of these Contractual Terms significantly change the economic significance or the content of the shipment or if they have a significant impact on the operation of Weber Ultrasonics AG, the contract shall be appropriately amended in good faith. If this is not economically feasible, Weber Ultrasonics AG shall be entitled to withdraw from the contract. If it wishes to make use of this right to withdraw, it shall, upon having recognized the full significance of the events, communicate this to the Customer, even if initially an extension of the delivery period had been agreed upon with the Customer.
3. Further claims for the reimbursement of damages of any kind and even damages that did not arise on the shipments themselves, shall only exist
- in the event of gross negligence or intent
- in the event of an injury to life, body or health
- in the event of a culpable violation of essential contractual obligations to the extent the achievement of the contractual purpose is at risk, with regard to the contractually typical, foreseeable damages
- in cases in which, according to product liability law, a party is held liable for personal injuries or material damage to privately used objects caused by defects in the shipments
- in the event of defects that were concealed in bad faith or the absence of which Weber Ultrasonics AG has warranted.
In all other cases, further claims for damages shall not apply.
4. If, due to the fault of Weber Ultrasonics AG, the Customer cannot use the shipments in a contractual manner because suggestions that were made prior to or after the conclusion of the contract were not or incorrectly followed or because other contractual ancillary obligations were not met, in particular instructions for the operation and maintenance of the shipments, the provisions of clauses XIII., X. and XI. of these Contractual Terms shall apply accordingly. All other claims by the Customer shall be excluded
XIII. PLACE OF JURISDICATION, APPLICABLE LAW
1. The place of jurisdiction for all disputes arising from or in connection with this agreement shall be Karlsruhe, Germany.
2. All claims arising from or in connection with the underlying contract shall be subject to the laws of the Federal Republic of Germany with the exception of the UN Sales Convention. The German wording shall be authoritative for the interpretation.
XIV. RESERVATION OF FULFILLMENT
1. The contractual fulfillment shall be subject to the reservation that it is not prevented by German, American or other applicable national, EU or international provisions of foreign trade law or any embargoes or other sanctions.
2. The Customer shall be required to provide all information and records that are required for the export, shipment and import.
TERMS OF PURCHASE
I. APPLICATION AREAS – GENERAL REMARKS
1. Only the “General Terms of Purchase of Weber Ultrasonics AG (hereinafter also referred to as the “Terms of Purchase”) shall apply to all orders; any terms of the Supplier that deviate from or contradict these Terms of Purchase shall not apply unless they have been expressly approved in writing. Even if Weber Ultrasonics AG accepts the Supplier’s delivery or performance without reservation and is fully aware of deviating or contradictory terms or amendments proposed by the Supplier with respect to these Terms of Purchase or the supply contracts, said acceptance shall not constitute consent.
2. These Terms of Purchase are superseded by any individual, written agreements made with the Supplier for a given case (including side agreements, addenda and amendments). A written contract or the written confirmation from Weber Ultrasonics AG shall govern the content of those types of agreements.
3. Legally relevant declarations and notifications that the Supplier must provide to Weber Ultrasonics AG after the conclusion of contract (such as deadlines, payment reminders, a withdrawal declaration) require the written form to be legally valid.
4. References to the application of legal provisions shall only have a clarifying effect. Even without such a clarification, therefore, the statutory provisions shall apply unless they are directly modified or expressly excluded in these Terms of Purchase.
5. These Terms of Purchase shall only apply vis-à-vis a corporate entity, a legal entity under public law or a special asset under public law pursuant to Sec. 310 para. 1 clause 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
6. If the Supplier has accepted these Terms of Purchase, they shall apply in their respectively valid version, which can be obtained from www.weber-ultrasonics.com, to future contracts with the Supplier as well.
II. OFFER – OFFER DOCUMENTS
1. Weber Ultrasonics AG shall be entitled to revoke an order if the Supplier does not accept the order placed by Weber Ultrasonics AG within five (5) workdays. Acceptance and/or revocation must be made at least in text form. Any failure by Weber Ultrasonics AG to respond to offers, requests or other declarations by the Supplier shall only be deemed as a consent if this was expressly agreed upon.
2. Weber Ultrasonics AG hereby reserves the right of ownership and, if copyrightable, the copyright to any illustrations, drawings calculations, models and other records and items provided to the Supplier; they may not be made available to third parties without the express written consent of Weber Ultrasonics AG. They must be used exclusively for the order by Weber Ultrasonics AG which the production is based on; after the order has been processed, they have to be returned to Weber Ultrasonics AG without a respective request (refer to clause XIII. in this regard as well).
III. PRICES – TERMS OF PAYMENT
1. The price stated in the order is binding. If there is no written agreement to the contract, the price includes free delivery and packaging; the return of the packaging requires a separate agreement. The respective applicable value added tax is included in the price.
2. Weber Ultrasonics AG can only process invoices that state the order number provided on the order in accordance with the requirements; the Supplier shall be responsible for any consequences associated with the non-compliance of this obligation unless the Supplier can show that it is not responsible for this circumstance.
3. Unless something else was agreed upon, Weber Ultrasonics AG shall pay the stated amount minus a 3% discount within 14 days, calculated from the delivery and receipt of a verifiable invoice, or the net stated amount within 60 days from the delivery and receipt of a verifiable invoice; in the event acceptance has been agreed upon, the payment period shall not begin prior to acceptance unless it is unduly refused and if documentation or similar records are part of the shipment, not prior to their contractual handover to Weber Ultrasonics AG. If payment is made by remittance or check, the obligation to pay shall be deemed as having been duly fulfilled if the remittance order was submitted by Weber Ultrasonics AG to its bank or if the check was sent to the Supplier.
4. Weber Ultrasonics AG shall be entitled to set-off and retention rights in the statutory scope.
IV. DELIVERY TIME – TRANSFER OF RISK
1. The delivery time stated on the order shall be binding.
2. Unless agreed upon differently in a specific case, delivery will be made free of charge to the address stated on the order (DDP Destination according to Incoterms 2020). If the destination is not provided and nothing else has been agreed upon, shipment must be made to the business premises of Weber Ultrasonics AG Deutschland, 76316 Karlsbad, Im Hinteracker 7. The respective destination is the place of fulfillment as well (obligation to provide). If delivery is not included, the Supplier must make the merchandise available in a timely manner and in consideration of the time that is generally required for loading and shipping.
V. PARTIAL DELIVERIES, DELIVERY IMPAIRMENTS, DELIVERY DELAY
1. Early deliveries, partial deliveries or deliveries of additional quantities require the prior written approval of Weber Ultrasonics AG. If such approval was not given, Weber Ultrasonics AG may refuse acceptance of this delivery or return it at the Supplier’s expense. The approval must be made at least in text form. Notwithstanding the existence of a prior approval by Weber Ultrasonics AG, the Supplier shall reimburse Weber Ultrasonics AG for any expenses or damages incurred by the early deliveries, partial deliveries or the delivery of additional quantities. If these deliveries cause increased transport costs, the Supplier must bear these.
2. The Supplier shall be required to promptly inform Weber Ultrasonics AG when circumstances arise or become recognizable by the Supplier that indicate that the agreed upon delivery time cannot be met. This information must be communicated at least in text form. The Supplier shall inform Weber Ultrasonics AG of the relevant information in this regard as well as the steps that the Supplier will take to avoid the delivery impairment or mitigate its effects.
3. Weber Ultrasonics AG shall be entitled to the respective statutory claims in the event of a delivery delay. Subsequent to the unsuccessful expiry of a reasonable grace period, Weber Ultrasonics AG shall, in particular, be entitled to demand damages instead of performance and withdrawal. If Weber Ultrasonics AG demands damages, the Supplier shall be entitled to prove to Weber Ultrasonics AG that it is not responsible for the breach of duty.
VI. SHIPPING, SHIPPING DOCUMENTS
1. The items to be shipped shall be duly packaged and shipped.
2. The Supplier shall be required to state the exact order number of Weber Ultrasonics AG on all shipping documents and bills of delivery; if the Supplier fails to do so, Weber Ultrasonics AG shall not be responsible for the resulting processing delays.
VII. DEFECT INVESTIGATION, LIABILITY FOR DEFECTS, LIMITATION PERIOD
1. Weber Ultrasonics AG must check the delivery that was received for quality and quality deviations within a reasonable period of time; a complaint shall be deemed as having been made in a timely manner if it is received by the Supplier within a period of seven (7) workdays, calculated from the receipt of the goods or, in the case of hidden defects, from the date they are discovered. If Weber Ultrasonics signed a quality assurance agreement with the Supplier, the provisions of said agreement shall have priority.
2. Weber Ultrasonics AG shall be entitled to any statutory claims for defects; Weber Ultrasonics AG shall, in each case and at its discretion, be entitled to demand from the Supplier the remediation of the defect or delivery of a new item. The right to damages, in particular the right to damages instead of performance, shall remain expressly reserved.
3. Weber Ultrasonics AG shall be entitled to remedy the defect itself at the Supplier’s expense or to have the remediation performed by a third party if the Supplier is in default with the remediation or if there is an imminent risk or because there are other reasons making the matter particularly urgent, for example because unreasonably high damages are threatening and the Supplier cannot be reached.
4. In deviation from Sec. 438 para. 1 Nr. 3 BGB, the general limitation period for claims for defects is three (3) years from the transfer of risk unless the law requires a longer statutory period. The three-year limitation period shall apply accordingly to claims relating to defects of title as well, but the statutory limitation period for third-party in rem surrender claims (Sec. 438 para. 1 no. 1 BGB) shall remain unaffected; claims relating to defects of title shall not become time-barred at all as long as third parties can still assert a right against Weber Ultrasonics AG, especially because they have not become time-barred. A respective waiver by Weber Ultrasonics AG shall only be effective if it was specifically declared in writing.
VIII. SUPPLIER RECOURSE
1. In addition to claims for defects, Weber Ultrasonics shall be entitled to any statutory recourse claims within a delivery chain (Supplier recourse pursuant to Secs. 445 a, 445 b, 478 BGB). Weber Ultrasonics AG shall, in particular, be entitled to demand from the Supplier precisely the type of supplementary performance (remediation or replacement) that it owes its customer in a given case. The statutory right of Weber Ultrasonics AG to choose (Sec. 439 para. 1 BGB) shall not be limited by this.
2. Claim based on a Supplier recourse shall be valid even if the defective merchandise was processed by Weber Ultrasonics AG or another company, for example if it was installed in another product.
IX. PRODUCT LIABILITY, INDEMNIFICATION, LIABILITY INSURANCE PROTECTION
1. To the extent the Supplier is responsible for product damage, the Supplier shall be required to indemnify and hold Weber Ultrasonics AG harmless in this regard from any third-party damage claims upon first request to the extent the cause lies within the Supplier’s sphere of control and organization, and the Supplier is liable in relationship to a third party.
2. In the context of its own liability for cases of damage as defined in paragraph (1), the Supplier shall furthermore be obligated to reimburse any expenses pursuant to Sec. 683 and Sec. 670 BGB or pursuant to Secs. 830, 840, 426 BGB that are incurred from or in connection with a recall duly performed by Weber Ultrasonics AG. Weber Ultrasonics AG shall inform the Supplier, to the extent possible and reasonable, about the content and scope of the recall to be performed and shall provide the Supplier with an opportunity to respond. Any other statutory claims shall remain unaffected.
3. The Supplier undertakes to take out a product liability insurance with a flat cover of EUR 10 million per personal injury/material damage for the duration of this contract, i.e., until the limitation period for claims has expired. Upon request, the Supplier shall substantiate to Weber Ultrasonics AG the conclusion and/or the existence of the product liability insurance. If Weber Ultrasonics AG is entitled to further claims for damages, these shall remain unaffected.
X. THIRD-PARTY PROPERTY RIGHTS
1. The Supplier warrants that no third-party rights are infringed in connection with its delivery/performance.
2. If Weber Ultrasonics AG is held liable by a third party in this regard, the Supplier shall be required to indemnify and hold Weber Ultrasonics AG harmless from these claims upon first written request.
3. In connection with third-party claims for damages, the Supplier shall have the right to demonstrate that the infringement of the third-party right is not its fault. Weber Ultrasonics AG shall not be entitled to enter into any agreements with the third party, in particular a settlement agreement, without the Supplier’s consent.
4. The Supplier’s indemnification obligation pertains to all expenses that Weber Ultrasonics AG has to incur from or in connection with the fact that it is being held liable by a third party unless the Supplier shows that it is not responsible for the breach of duty on which the property right infringement is based.
XI. RETENTION OF TITLE, MATERIALS, TOOLS
1. Weber Ultrasonics AG shall retain the title to any parts ordered by Weber Ultrasonics AG from the Supplier. Any processing or conversion performed by the Supplier is performed on behalf of Weber Ultrasonics AG. If the merchandise of Weber Ultrasonics AG that is subject to a retention of title is processed with other items that do not belong to Weber Ultrasonics AG, Weber Ultrasonics shall obtain joint ownership to the new item in the share of the value of its item (purchase price plus VAT) relative to the other processed items at the time they are processed.
2. If the item provided by Weber Ultrasonics AG is inseparably mixed with other items that do not belong to Weber Ultrasonics AG, Weber Ultrasonics shall obtain joint ownership to the new item in the share of the value of the merchandise that is subject to a retention of title (purchase price plus VAT) relative to the other mixed-in items at the time they are mixed. If the mixing is performed in such a way that the Supplier’s item can be considered the main item, the parties agree that the Supplier shall transfer the joint ownership to Weber Ultrasonics AG in the prorated amount of the value of the item provided; the Supplier shall safeguard the sole ownership or the joint ownership on behalf of Weber Ultrasonics AG.
3. Weber Ultrasonics AG reserves the right of ownership to the tools; the Supplier shall be required to use the tools only for the production of the merchandise ordered by Weber Ultrasonics AG. The Supplier shall insure the tools that belong to Weber Ultrasonics AG at their replacement value and at its own expense against fire, water, and theft damages. At the same time, Weber Ultrasonics AG hereby assigns all indemnification claims under this insurance; Weber Ultrasonics AG hereby accepts the assignment. The Supplier shall be required to perform any services and inspections as well as any maintenance and repair work that may be required for the tools of Weber Ultrasonics AG at its own expense in a timely manner. The Supplier shall promptly notify Weber Ultrasonics AG of any incidents; should the Supplier culpably fail to do so, the claims for damages shall remain unaffected.
4. If the security rights Weber Ultrasonics AG is entitled to according to paragraph 1. and/or paragraph 2. exceed the purchase price of all still unpaid merchandise that is subject to a retention of title by more than 10%, Weber Ultrasonics AG shall, upon the Supplier’s request, be required to release the security rights at the discretion of Weber Ultrasonics AG.
XII. TRANSFER OF ORDERS TO THIRD PARTIES
1. The Supplier shall not be entitled to transfer orders to third parties without the prior written approval of Weber Ultrasonics AG. If Weber Ultrasonics AG grants its approval, the Supplier shall remain responsible for the performance of the contract.
2. In the case of contraventions, Weber Ultrasonics AG shall be entitled to withdraw from all or parts of the contract. The Supplier shall be required to reimburse Weber Ultrasonics AG for any damages incurred by Weber Ultrasonics AG in this regard.
XIII. CONFIDENTIALITY, DATA PROTECTION
1. The Supplier shall be required to treat all not publicly known technical, commercial and organizational information of Weber Ultrasonics AG, in particular and including photo materials, records and items according to clause II. para. 2. (hereinafter referred to as “Confidential Information”) that it becomes privy to or that is disclosed to the Supplier in this context of the business relationship with Weber Ultrasonics AG as confidential, to only use it for the purpose for which it was provided (i.e. for the provision of the ordered shipments and services) and to neither exploit the same for the duration of the contract and five (5) years upon the termination of the contract for itself nor to make it accessible to third parties. They may only be provided to third parties with a corresponding express written approval by Weber Ultrasonics AG. If it is necessary to involve the Supplier’s employees, the respective employees shall be required to maintain confidentiality, unless they are already instructed to do so in their employment contract, if possible even for the period following their employment.
2. The Supplier may only record confidential information to the extent this is necessary for the contractual purpose.
3. The Supplier undertakes to do whatever it can within the scope permitted by the latest technology to immediately and effectively protect any information, data and items from Weber Ultrasonics AG against third-party access and to protect it in particular against theft, loss, manipulation, damage or any type of duplication. If the Supplier has an indication that unauthorized third parties may have gained knowledge of the information, data and items, the Supplier must promptly inform Weber Ultrasonics AG in writing and, in coordination with the same, initiate all steps necessary to clarify the matter and potentially prevent any future access.
4. The Supplier’s obligation to maintain secrecy shall not apply or shall end if the Confidential Information becomes publicly known at the time of their disclosure or provision or thereafter without any violation of the obligations listed under paragraphs 1 to 3 above or if they were demonstrably known already, if the Confidential Information was duly known to the Supplier prior to its disclosure/provision without being subject to confidentiality, if Weber Ultrasonics AG has waived its protection in writing, if the Confidential Information became known to the Supplier from a source other than Weber Ultrasonics AG, including companies of the Weber Ultrasonics Group, and nobody breached a duty to confidentiality in this regard, if the Confidential Information was available to the Supplier from its own or commissioned development work or if it becomes available from the Supplier’s own or commission development work without the use of the Confidential Information of Weber Ultrasonics AG or if the information is or becomes the latest available technology. If the Supplier bases its actions on one of these exceptions, the Supplier must provide proof that said exception exists. To the extent the Supplier must disclose Confidential Information of Weber Ultrasonics AG by law, due to a court or administrative order/decision, the Supplier must first inform Weber Ultrasonics AG in writing, unless another applicable legal provision or administrative order prohibits this, and give Weber Ultrasonics AG sufficient opportunity to obtain a preliminary injunction or to take other steps to protect the Confidential Information. Prior to such a disclosure, the Supplier shall furthermore inform the court or the administrative body that this is Confidential Information and only disclose said information to the extent necessary to satisfy the law or the court or administrative order/decision.
5. Should the Supplier legally edit or store information and data from Weber Ultrasonics AG in its data processing systems, the Supplier shall (in accordance with paragraph 3.) ensure that third parties cannot access said data.
6. The Supplier undertakes to return all information, data, records and storage media to Weber Ultrasonics AG after the order has been executed. The Supplier shall furthermore remove all data and information from its data processing systems and, at the discretion of Weber Ultrasonics AG, either return all copies of the data and storage media to Weber Ultrasonics AG or destroy the copies in a manner that makes any reconstruction impossible. At the request of Weber Ultrasonics AG, the Supplier shall demonstrate and confirm the complete return or destruction in writing.
7. The Supplier shall be required to comply with all data protection provisions as amended and shall respect the same. The Supplier shall instruct all employees in accordance with the applicable data protection provisions and require them to sign a data secrecy commitment. These commitments must be submitted to Weber Ultrasonics AG or its Data Privacy Officer upon request.
XIV. COMPLIANCE CLAUSE
1. The Supplier shall not commit any acts or shall refrain from acts that may lead to a criminal liability with respect to fraud or embezzlement, insolvency offenses, offenses against competition, the granting of advantages or the corruption of individuals working for the Supplier or other third parties. In the case of a violation, Weber Ultrasonics AG shall be entitled to an immediate right to withdraw from or terminate all legal transactions with the Supplier and to break off all negotiations. Notwithstanding the above, the Supplier shall be required to adhere to all laws and provisions pertaining to the business relationship with Weber Ultrasonics AG.
XV. LEGAL MINIMUM WAGE, GERMAN POSTED WORKERS ACT, PROHIBITION OF ILLEGAL EMPLOYMENT
1. The Supplier shall ensure that employees used by the Supplier or by any subcontractor or temporary employment agency it may use (cf. clause XII.) for the execution of contracts with Weber Ultrasonics AG receive the legal minimum wage in accordance with the German Minimum Wage Act or at least the minimum hourly wage in accordance with the regulation issued pursuant to Sec. 3 on the basis of the German Law on Temporary Employment (Arbeitnehmerüberlassungsgesetz – AÜG) if the work to be provided falls under the application area of the German Posted Workers Act (Arbeitnehmerentsendungsgesetz – AEntG), the required minimum wage for the industry. In the same way, the Supplier shall ensure that mandatory obligations for the payment of contributions to social security, professional associations and other institutions such as the joint institutions of the collective bargaining parties cited in Sec. 8 AEntG are met.
2. The Supplier shall verify compliance with the prerequisites according to paragraph 1 above when selecting subcontractors or temporary employment agencies and shall have them commit to their compliance in writing. Furthermore, the Supplier shall have them confirm in writing that they will require their own subcontractors or temporary employment agencies to comply with the requirements.
3. The Supplier hereby indemnifies and holds Weber Ultrasonics AG harmless from any cases in which Supplier has, as a guarantor, been held duly liable by an employee of the contractor or by an employee of a subcontractor being used, regardless on what level, or of a temporary employment agency for the payment of the legal minimum wage or the minimum wage of the industry or if the Supplier has been held liable by one of the institutions of the collective bargaining parties referenced in Sec. 8 AEntG to pay contributions.
4. Weber Ultrasonics AG shall be entitled to terminate the contract with the Supplier without having to give notice if Weber Ultrasonics AG is duly held liable due to the guarantor liability under the Minimum Wage Act or the AEntG.
5. The Supplier shall furthermore be liable to Weber Ultrasonics AG for any damages Weber Ultrasonics AG may incur due to the culpable on-compliance with the obligations set forth in paragraphs 1 and 2 above.
6. Illegal employment of any kind must be refrained from.
XVI. PLACE OF JURISDICTION, APPLICABLE LAW, PRIORITY OF THE GERMAN VERSION
1. The exclusive place of jurisdiction for all claims from the business relationship with the Supplier shall be Karlsruhe, Germany. Weber Ultrasonics AG shall, however, be entitled to file a lawsuit at the Supplier’s seat as well.
2. The laws of the Federal Republic of Germany with the exception of the UN Sales Convention (CISG) and the collision rules applicable in Germany shall apply exclusively unless the parties have agreed otherwise.
3. The German wording shall be authoritative for the interpretation.