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Terms & Conditions

General Terms and Conditions of WTS24 GMBH for Business Transactions with Entrepreneurs within the Meaning of § 14 BGB (German Civil Code)

§ 1 General Provisions

1.1 The following General Terms and Conditions (“GTC”) shall apply to all deliveries and services of WTS24 GMBH, Dorsten, Germany (hereinafter “WTS24 GmbH”) vis-à-vis the respective contractual partner who is an entrepreneur (hereinafter “Customer”). An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity. These GTC shall also apply to future contracts between WTS24 GMBH and the Customer, even if their applicability is not expressly agreed upon again.

1.2 Any terms and conditions of the Customer that deviate from, supplement, or conflict with the following GTC of WTS24 GMBH shall not become part of a contract without a written agreement to the contrary. This shall also apply if WTS24 GMBH does not expressly object to such terms and conditions vis-à-vis the Customer after receiving them. The precedence of individual agreements between the parties over these GTC shall remain unaffected.

§ 2 Offers, Formation of Contract

2.1 Offers made by WTS24 GMBH are always non-binding and without obligation, unless WTS24 GMBH has expressly designated an offer as binding in text form (§ 126b BGB). Unless otherwise stated in the respective offer, WTS24 GMBH shall be bound by a binding offer for two weeks from the date of receipt of the offer by the Customer.

2.2 A contract shall only be concluded upon issuance of an order confirmation, invoice, or proforma invoice by WTS24 GMBH in text form, or upon the Customer’s acceptance of a binding offer from WTS24 GMBH. Only the terms agreed upon in text form in the respective contract or statement of work shall apply.

2.3 A contract is based on the technical and functional requirements communicated by the Customer, in particular the operating environment specified by the Customer. WTS24 GMBH is under no obligation to verify the completeness and plausibility of such communications.

2.4 The performance capability of the high-pressure water machines of WTS24 GMBH depends significantly on the specific operating environment. Binding performance data generally require a test run in the operating environment planned by the Customer.

§ 3 Delivery, Performance of Services, Subcontractors

3.1 Deadlines shall only be binding if they have been expressly confirmed by WTS24 GMBH in writing as binding.

3.2 Any agreed binding delivery period shall commence only on the date of the order confirmation, but not before receipt of all documents and information required from the Customer for the execution of the order.

3.3 In the event of force majeure, such as war, natural disasters, boycotts, or similar events, WTS24 GMBH shall be entitled to postpone the performance of owed services for the duration of the impediment plus a reasonable additional period, or, if performance becomes actually or economically impossible, to withdraw from the contract. The Customer shall not be entitled to withdraw from the contract insofar as the Customer is responsible for the impediment.

3.4 In the absence of any agreement to the contrary, WTS24 GMBH shall be entitled to have contractual deliveries and services performed by subcontractors. The warranty obligation towards the Customer shall remain with WTS24 GmbH.

3.5 Upon written request by the Customer, WTS24 GMBH shall cooperate with the Customer’s other service providers and suppliers. To the extent that WTS24 GMBH incurs significant effort as a result, such effort may be invoiced separately based on the prices agreed at the time of contract conclusion. To the extent that WTS24 GMBH intends to invoice additional effort to the Customer hereunder, the Customer shall be notified immediately in writing or in text form.

3.6 WTS24 GMBH shall perform the services by prior arrangement and, where necessary, at the Customer’s premises. To the extent that performance at the Customer’s premises is not required, WTS24 GMBH shall be free to choose the place of performance.

§ 4 Cooperation and Contributions

In addition to the provisions contained in the respective contract and the cooperation obligations pursuant to Section 7, the following general provisions shall apply:

4.1 If the Customer designates a contact person, the Customer thereby authorises that person to represent the Customer within the scope of the project. In particular, the Customer thereby declares that all statements made by such person shall be binding on the Customer, insofar as they relate to the cooperation between WTS24 GMBH and the Customer.

4.2 The Customer shall, as required, provide WTS24 GMBH with floor space, rooms, and workstations for the number of persons required for the performance of the services. The Customer shall grant WTS24 GMBH and its personnel access to its premises during normal business hours as required for the performance of the services. If specific safety requirements must be observed at the Customer’s premises, the Customer shall proactively inform WTS24 GMBH thereof and instruct WTS24 GMBH regarding the requirements for conduct on the premises.

4.3 The contributions and cooperation to be provided by the Customer constitute genuine obligations and not merely obliquities (Obliegenheiten). If the Customer breaches these obligations and such breach impacts the services to be performed by WTS24 GMBH, WTS24 GMBH may — without prejudice to further rights — demand a corresponding adjustment of the contractual arrangements (e.g. changes to the schedule and remuneration). Any agreed provisions regarding a change procedure, change request procedure, or similar, even if contractually provided only for the benefit of the Customer, shall apply accordingly. To the extent that WTS24 GMBH incurs additional effort due to the Customer’s improper or untimely fulfilment of obligations, such additional effort may be invoiced separately to the Customer at the agreed prices. Deadlines to be met by WTS24 GMBH shall be extended in an objectively reasonable proportion to the duration of the delay in the contribution and its relevance to the performance of the services.

§ 5 Retention of Title, Prohibition of Assignment

5.1 WTS24 GMBH shall retain title to the delivered goods until full payment of the claim arising from the delivery.

5.2 As long as title has not yet passed to the Customer, the Customer shall be obligated to treat the delivered item with care. If maintenance and inspection work needs to be carried out, the Customer shall carry out such work at its own expense in a timely manner. As long as title has not yet passed, the Customer shall immediately notify WTS24 GMBH in writing if the delivered item is seized or subjected to any other third-party interference. To the extent that the third party is unable to reimburse WTS24 GMBH for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the Customer shall be liable for the loss incurred by WTS24 GMBH.

5.3 The Customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. The Customer hereby assigns to WTS24 GMBH all claims of the purchaser arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with WTS24 GMBH (including VAT). WTS24 GMBH hereby accepts this assignment. This assignment shall apply regardless of whether the delivered goods have been resold without or after processing. The Customer shall remain authorised to collect the claim even after the assignment. The authority of WTS24 GmbH to collect the claim itself shall remain unaffected. However, WTS24 GMBH shall not collect the claim as long as the Customer meets its payment obligations from the collected proceeds, is not in default of payment, and in particular no application for the opening of insolvency proceedings has been filed or payment has been suspended.

5.4 The processing and working of the delivered goods by the Customer shall always be carried out in the name of and on behalf of WTS24 GMBH. In this case, the Customer’s expectant right in the delivered goods shall continue in the transformed goods. If the delivered goods are processed with other items not belonging to WTS24 GMBH, WTS24 GMBH shall acquire co-ownership of the new goods in proportion to the objective value of the goods delivered by WTS24 GMBH to the other processed items at the time of processing. The same shall apply in the event of commingling. If the commingling occurs in such a way that the Customer’s goods are to be regarded as the principal item, it shall be deemed agreed that the Customer shall transfer proportionate co-ownership to WTS24 GMBH, and the Customer shall hold the resulting sole ownership or co-ownership in trust for WTS24 GMBH. To secure the claims of WTS24 GMBH against the Customer, the Customer shall also assign to WTS24 GMBH any claims against third parties arising from the connection of the goods subject to retention of title with real property; WTS24 GMBH hereby accepts this assignment.

5.5 WTS24 GMBH undertakes to release the security interests held by WTS24 GMBH at the Customer’s request, insofar as their value exceeds the claims to be secured by more than 20%.

5.6 The Customer’s rights under contracts with WTS24 GMBH shall not be transferable without the written consent of WTS24 GMBH. § 354a HGB (German Commercial Code) shall remain unaffected.

§ 6 Rights of Use

6.1 To the extent that the transfer of rights of use, processing, or exploitation in the deliveries and services rendered by WTS24 GMBH to the Customer is contractually agreed, the transfer of such rights shall be subject to the condition precedent of full payment of the claim arising from the delivery or service rendered.

6.2 WTS24 GMBH shall remain the owner of all materials that are or can be protected by industrial property rights or quasi-proprietary positions of any kind (e.g. patent rights, design rights, trademark rights, utility model rights, and copyrights), whether registered or not (“intellectual property rights”) (“Materials”), and that belong to WTS24 GMBH at the time of conclusion of the contract or are developed by WTS24 GMBH (or by third parties on behalf of WTS24 GMBH) after conclusion of the contract. The same shall apply to adaptations, modifications, and further developments. Upon delivery of the Materials, WTS24 GMBH shall grant the Customer a non-exclusive, perpetual, non-transferable, and non-sublicensable right to use the Materials delivered under the contract, to the extent arising from the purpose of the contract.

6.3 The Customer shall remain the owner of all materials that belong to the Customer at the time of conclusion of the contract or are developed by the Customer (or by third parties on the Customer’s behalf) after conclusion of the contract (“Customer Materials”). The same shall apply to adaptations, modifications, and further developments. To the extent that such are carried out by WTS24 GMBH, they shall be for the exclusive use and exploitation by the Customer. Section 6.1 shall apply accordingly to any new work thereby created. The Customer shall grant WTS24 GMBH a non-exclusive, non-transferable right to use the Customer Materials, limited to the period and purpose of contract performance.

6.4 To the extent that WTS24 GMBH delivers or makes available to the Customer third-party software or “open source software” (e.g. as an “embedded system”) as part of the delivery or the services to be rendered under the contract, the Customer shall receive rights of use therein not from WTS24 GMBH but from the third party in accordance with its licence terms or in accordance with the licence terms applicable to the open source software. It shall be the Customer’s responsibility to comply with such licence terms.

6.5 The Customer shall be obligated not to remove manufacturer information — in particular copyright notices and/or trademarks — or to alter them without the prior written consent of WTS24 GMBH or, if different, of the manufacturer.

§ 7 Warranty for Defects, Customer Cooperation

7.1 The statutory provisions on warranty for defects shall apply, subject to the deviating provisions contained in the “Special Provisions for Purchase, Rental, and Works Contracts” below (Section 15).

7.2 The Customer shall provide WTS24 GMBH with all information and items available to the Customer, to the extent necessary for the performance of the contract, and shall create all conditions necessary for the performance of deliveries and services within the Customer’s sphere of operations.

7.3 The Customer shall provide WTS24 GMBH in particular with its individual requirements for the subject matter of the contract. This shall also include complete information about the existing operating environment, any interfaces, business processes, as well as concepts regarding technical and organisational framework conditions.

7.4 Further obligations of the Customer shall include, in particular, the deployment of professionally qualified employees and adequate training of its employees to ensure a secure implementation and operating procedure, as well as the preparation and performance of acceptance, in particular the availability of data transmission and complete, prompt, and sufficiently precise error reports by telephone and in text form in advance.

§ 8 Liability

8.1 WTS24 GMBH shall be liable without limitation for personal injury. The same shall apply to other damages incurred by the Customer as a result of an intentional or grossly negligent breach of duty by WTS24 GMBH, as well as to claims under the Produkthaftungsgesetz (German Product Liability Act) and claims under the supplier’s recourse pursuant to §§ 478, 479 BGB.

8.2 For typical contractual damages incurred by the Customer as a result of a material breach of contract by WTS24 GMBH, WTS24 GMBH shall also be liable where only slight negligence is attributable to WTS24 GMBH. However, liability for indirect damages, such as loss of profit, shall be excluded in this respect. A material contractual obligation within the aforementioned meaning is one whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely.

8.3 In all other respects, WTS24 GMBH’s liability for slight negligence shall be excluded.

§ 9 Limitation Period

9.1 All claims of the Customer shall become time-barred, regardless of the legal basis, within 12 months.

9.2 For intentional or fraudulent conduct, as well as for claims under the Produkthaftungsgesetz (German Product Liability Act), claims arising from supplier’s recourse (§§ 478, 479 BGB), and personal injury, the statutory limitation periods shall apply.

9.3 The statutory provisions shall also apply to defects in a building or delivered items that have been used in accordance with their customary use for a building and have caused its defectiveness.

§ 10 Third-Party Rights, Indemnification

10.1 The Customer warrants to WTS24 GMBH that all templates, documents, machines, data, texts, information, software, images, and other content provided by the Customer are free from third-party rights or that the Customer holds corresponding rights of use (“licences”).

10.2 The Customer shall indemnify WTS24 GMBH against any and all third-party claims asserted against WTS24 GMBH due to possible legal violations resulting from the use, including storage, of templates, documents, machines, data, texts, information, software, images, and other content provided by the Customer. The Customer shall be obligated to reimburse WTS24 GMBH for the necessary costs incurred as a result of such claims. Other claims of WTS24 GMBH shall remain unaffected.

10.3 The Customer further undertakes to provide WTS24 GMBH with all necessary information and documents and to take cooperative action in order to defend against any third-party claims asserted.

10.4 If claims are asserted against the Customer arising from the infringement of intellectual property rights valid in Germany by delivered or licensed items supplied under these terms, the Customer shall enable WTS24 GMBH to defend against such claims. The Customer shall be obligated to (1) notify WTS24 GMBH immediately in writing of the assertion of such claims, (2) provide WTS24 GMBH with all information necessary for the legal defence and fulfil all other cooperation obligations, (3) leave the decision to WTS24 GMBH as to whether and how the claim shall be defended. In such circumstances, WTS24 GMBH shall reimburse the Customer for all costs and damages that are undisputed between WTS24 GMBH and the Customer, or that have been acknowledged by WTS24 GMBH or established by final and binding court decision. If it is established by final and binding court decision that further use of the contractual items infringes third-party intellectual property rights valid in Germany, or if in the opinion of WTS24 GMBH there is a risk of an infringement action, WTS24 GMBH may, to the extent that liability is not excluded, at its own expense either procure for the Customer the right to continue using the contractual items, or replace or modify them so that no infringement exists, or — at the Customer’s request — refund the value of the contractual item upon its return, less a compensation for the use derived up to that point.

10.5 To the extent that the Customer itself modifies or has third parties modify the Materials delivered by WTS24 GMBH under the contract, the claims under this Section 10 shall cease to apply, unless the Customer demonstrates that the modifications made by the Customer or a third party did not cause any infringement of third-party intellectual property rights.

10.6 The foregoing provisions of Section 10 shall apply mutatis mutandis in the event that WTS24 GMBH is held liable for the infringement of third-party intellectual property rights through Customer Materials or materials provided by the Customer from third parties.

§ 11 Set-Off, Right of Retention

11.1 The Customer shall only be entitled to set off claims that are undisputed, acknowledged by WTS24 GMBH, or established by final and binding court decision; this shall not apply where the claims in question are warranty claims of the Customer against WTS24 GMBH under the same contract.

11.2 In the event of a justified defect notification, a right of retention shall only be permissible in a reasonable and proportionate relationship between the defect and the invoice amount resulting from the delivery (excluding delivery costs). If the transaction constitutes a commercial transaction between merchants, the Customer may only withhold payments if the defect notification is undisputed or the claim has been established by court decision.

§ 12 References

WTS24 GMBH shall have the right to use the services rendered for the Customer, stating the Customer’s name and industry, as a reference for its own advertising purposes. This shall also apply to WTS24 GMBH’s own advertising on the internet. To the extent that a Customer’s name is wholly or partially identical with a trademark or a designation protected by another right, the aforementioned right of WTS24 GMBH shall not be impaired thereby.

§ 13 Term and Termination of Continuing Obligations

13.1 If the performance obligations of WTS24 GMBH are not limited to a one-time, time-limited performance (“continuing obligation”), the contract term shall, subject to a deviating agreement in the contract, be a minimum of one month and shall be extended by one additional month in each case if the contract is not terminated by WTS24 GMBH or the Customer in text form with a notice period of 14 days to the end of the respective contract term.

13.2 The statutory rights of termination (e.g. §§ 643, 649 BGB) and the right to extraordinary termination of the contract for good cause shall remain unaffected by any agreed minimum term in the contract or pursuant to Section 13.1.

§ 14 Remuneration, Payment Terms

14.1 The remuneration shall be due for payment from the date of performance and shall be payable immediately upon the invoice date, without any deduction, to the account of WTS24 GMBH. Invoicing shall be on a time-and-materials basis, monthly in arrears for the services rendered in the preceding month.

14.2 All prices quoted are, unless otherwise stated, exclusive of the applicable statutory value-added tax. Any customs duties shall be borne by the Customer. If no prices have been agreed, the price list of WTS24 GMBH in the most current version shall apply.

14.3 WTS24 GMBH shall be entitled to adjust the prices agreed with the Customer in a continuing obligation by giving the Customer one month’s written notice, but not before four months from the start of the contract. The Customer shall have an extraordinary right of termination in such case.

14.4 If WTS24 GMBH renders services at the Customer’s request during night-time hours (between 6:00 p.m. and 8:00 a.m.), a surcharge on the otherwise agreed remuneration shall be invoiced to the Customer. The amount of the surcharge shall be determined primarily by the contract and shall, in the absence of an agreement, amount to 100%.

§ 15 Special Provisions for Purchase, Rental, and Works Contracts

In addition to the foregoing provisions, the following provisions shall also apply:

15.1 Liability for initial defects of the leased property shall be excluded (§ 536 BGB).

15.2 The Customer undertakes to accept deliveries and services (hereinafter collectively the “Work”) without undue delay, to the extent that acceptance is agreed and/or required, once WTS24 GMBH notifies the Customer of the completion of the Work to be accepted in text form.

15.3 If a defect is immaterial, the Customer may not refuse acceptance.

15.4 If acceptance is delayed through no fault of WTS24 GMBH, acceptance shall be deemed to have occurred upon the expiry of 2 weeks from notification of completion, but at the latest upon the Customer’s commissioning of the Work without declaring that the use is substantially impaired.

15.5 The Customer shall be obligated to inspect deliveries and services of WTS24 GMBH immediately upon receipt, but at the latest immediately after notification of completion, as to whether they are in conformity with the contract; § 377 HGB (German Commercial Code) shall remain unaffected. The transfer of software created or modified by WTS24 GMBH from a test system, where it was made available to the Customer upon notification of completion, to a production system, as well as comparable services in similar circumstances, shall be the Customer’s responsibility.

15.6 WTS24 GMBH shall be entitled to claim up to 50% of the purchase price or work remuneration as a progress payment immediately upon conclusion of the contract. In the context of continuing obligations with a works contract character, invoices issued prior to completion of the services shall, in case of doubt, be understood as claiming a corresponding progress payment on the work remuneration becoming due upon acceptance. Section 14 shall apply accordingly to each individual progress payment claim.

15.7 In the event of a justified demand for supplementary performance by the Customer, WTS24 GMBH reserves the right to determine the type of supplementary performance (replacement delivery or repair). §§ 439(3), 636 BGB shall remain unaffected.

§ 16 Right to Amend

WTS24 GMBH reserves the right to amend these GTC or further contractual terms referencing them at any time outside of a specific exchange of services. During an ongoing contract, such amendments shall only become effective if the Customer does not object to the amendment within one month of receipt of a notification of amendment in text form and WTS24 GMBH has informed the Customer of the right to object and the deadline in the notification of amendment in text form. If the Customer objects to the amendment, the contract shall continue without the amendments. However, WTS24 GMBH shall be entitled to terminate the contract with one month’s notice to the end of the quarter, in writing (§ 126(1) BGB), within one month of receipt of the objection. Excluded from this right to amend are all amendments relating to material contractual obligations of a party; this shall not apply if the amendment is necessary to adapt the contract, the GTC, or the further contractual terms referencing them to mandatory statutory changes.

§ 17 Withdrawal or Cancellation by the Buyer

17.1 If the Buyer withdraws from the contract or cancels the order after the order has been placed for reasons not attributable to the Seller, the Seller shall be entitled to claim damages for non-performance.

17.2 The damages shall be calculated on a lump-sum basis as follows:

  1. 30% of the agreed purchase price if the goods have not yet been procured or reserved.
  2. 50% of the purchase price if the goods have already been procured, reserved, or prepared for the Buyer.
  3. Up to 100% of the purchase price if the goods were specifically procured, customised, or already delivered or made ready for dispatch for the Buyer.
  4. For used machines or equipment that were specifically procured on the market or reserved for the Buyer, the lump-sum damages shall amount to at least 30% and up to 100% of the purchase price, depending on the stage of procurement and the costs already incurred.
  5. Any advance payments already made shall be offset against the damages.
  6. The Buyer reserves the right to demonstrate that the Seller has suffered no loss or a substantially lesser loss.
  7. Further claims for damages are reserved.

§ 18 Miscellaneous

18.1 The law of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) and the rules of conflict of laws.

18.2 Any amendment or supplement to these General Terms and Conditions and the respective contracts shall require written form. This shall also apply to any amendment of the written form requirement itself.

18.3 The place of jurisdiction for all disputes arising out of or in connection with the contractual relationship shall be the registered office of WTS24 GMBH, provided that the Customer is a merchant (Kaufmann), a legal entity under public law, or a special fund under public law. WTS24 GMBH shall, however, also be entitled to bring an action at the Customer’s registered office.

18.4 The contractual language is German. If a contract is drafted bilingually, the German-language version shall prevail.

18.5 The rights and obligations of WTS24 GMBH and the Customer shall be determined first by the contractual agreements, then by these GTC.

18.6 Should any one or more of the foregoing provisions or of the contract be or become invalid, this shall not affect the validity of the remaining provisions. The application of § 139 BGB shall be excluded.

As of: March 2021
WTS24 GMBH