GENERAL TERMS AND CONDITIONS OF BUSINESS

Art. 1 Scope of the General Terms and Conditions of Business

 

1.1.
These General Terms and Conditions of Business (“Business Terms”) apply to all present and future business relations and contracts / agreements concluded between WegscheidEntrenco GmbH (“WegscheidEntrenco GmbH”) and the principals or customers (collectively and individually the “Customer”)

 

1.2.
The Customer’s General Terms and Conditions of Business are hereby expressly disclaimed, dissented to and objected to. Divergent, conflicting and/or additional General Terms and Conditions of Business do not become part of the contract or agreement with WegscheidEntrenco GmbH, even if WegscheidEntrenco GmbH is aware of them, unless WegscheidEntrenco GmbH has expressly consented to their validity in writing. If the Customer does not accept these Business Terms, the Customer must expressly declare so in writing to WegscheidEntrenco GmbH prior to, or at the latest, at the time of entering into contract.

Art. 2 Conclusion of Contract

2.1.
WegscheidEntrenco GmbH sells hardware products (“Hardware Products”) (gasifiers, combustion facilities, power plants et al.) on the basis of individual purchase offers (“Purchase Offer”, “Angebot”) to each potential customer and the respective accepting purchase order (“Purchase Order”, “PO”, “Annahme”) by the respective Customer. The specifications of any sold Hardware Products, if any, are set forth in the individual Purchase Offer to the respective Customer. Additionally, WegscheidEntrenco GmbH sells products manufactured by third parties (“Third Party Products”) in connection with the Hardware Products (the Hardware Products and the Third Party Products hereinafter also the “Products”).

2.2.
Quotes and offers by WegscheidEntrenco GmbH are always without obligation and exclusive of the applicable value added tax and other legal levies and expenses. They are provided as an invitation to place an order in acceptance of the quote/offer. A Purchase Order or other order by the Customer is binding for the Customer for a period of one month after issuance.

 

2.3.
Any oral remarks, comments or amendments to a quote or offer of WegscheidEntrenco GmbH and/or any warranties of fitness for a particular purpose and/or any amendments of or additions to these Business Terms shall only be valid if expressly confirmed in writing. Any oral and/or implied warranties and/or terms are hereby expressly disclaimed and do not become part of the agreement between the parties. These Business Terms together with any additional written agreements and/or contracts expressly signed by the parties (e.g. the individual WegscheidEntrenco GmbH Purchase Offer as accepted by the respective Customer Purchase Order), constitute the entire agreement between the parties regarding their business relationship

2.4.

If the Customer requests modifications or supplements to any contract or agreement with WegscheidEntrenco GmbH after its conclusion, WegscheidEntrenco GmbH shall examine the requested changes and will offer the Customer in good faith a written amendment to the contract or agreement at a reasonable additional compensation. The Customer is not entitled to claim default or any other rights for the delay of WegscheidEntrenco GmbH’s performance that is resulting from such amendment requests by the Customer.

 

2.5.
WegscheidEntrenco GmbH reserves the right to modify its Products or services to the extent technically necessary or reasonable to effect technical improvements as long as those are fair and appropriate (and the Customer can be reasonably expected to accept them) in view of the original subject of the agreement between the parties. Changes to the Purchase

Price shall only be effective upon mutual consent between WegscheidEntrenco GmbH and the Customer. In the event of modifications relating to Japanese laws and regulations to which the Customer must conform or modifications relating to changes in the specifications of the equipment prepared by the Customer, the Customer shall be notified in advance.

2.6.
Prices specified in the applicable individual quote or offer are fixed prices, FOB. Cash discount is only permissible if contained in the Purchase Offer. Value added tax, duties, and other legal levies in the country of delivery as well as any expenses for packaging, customs duties, transport insurance or environmental handling fees (local permits and requirements) plus transport services are charged separately to the Customer.

 

2.7.
WegscheidEntrenco GmbH reserves – irrespective of the right according to Art. 2.4 – the right to increase prices reasonably if, after conclusion of the agreement between the parties costs for WegscheidEntrenco GmbH increase due to changes in the legal requirements pertaining to WegscheidEntrenco GmbH’s products or services or due to price increases resulting from currency exchange rate fluctuations. WegscheidEntrenco GmbH shall prove such increased overall costs to the Customer when claiming the respective price increase. Furthermore, the Customer shall be entitled to terminate the contract, should the increase of the purchase price be higher than 5 %.
2.8.
Weight specifications, dimensions, aesthetics and other technical specifications in drawings, brochures, pictures and other documents by WegscheidEntrenco GmbH as well as economic calculations are non-binding unless contained in an individual Purchase Offer by WegscheidEntrenco GmbH as accepted by a respective Customer Purchase Order or otherwise contained in a mutual written agreement signed by both parties.

 

Art. 3 Operation and Maintenance

3.1.
To ensure the effectiveness of WegscheidEntrenco GmbH’s retention of title (see below) the Customer agrees to operate the provided Products, particularly power plants, in accordance with these Business Terms, including, but not limited to,

 

a) to ensure the provided Products, particularly power plants, are used as directed and in an appropriate environment such as external temperature, covered area, air circulation, and proper grid connection.

 

b) to ensure that only the feedstock approved by WegscheidEntrenco GmbH is used, which must be free of contaminations such as rocks and other non-biomass materials. The Customer agrees to operate the provided Products, particularly power plants, with standardized feedstock only to achieve trouble-free running of the plant. WegscheidEntrenco GmbH shall mark (and, upon request, orally explain) each update of the operating manual to the Customer, either electronically or in writing, and shall respond to the Customer’s questions promptly.

The buyer furthermore agrees to strict adherence to the wood chip/feedstock quality as provided in the operating manual, as updated from time to time by WegscheidEntrenco GmbH within its reasonable discretion, and to careful maintenance of the provided Products, particularly power plants, according to the installation instructions and any maintenance and/or operations service plan agreement between the parties, if any.

In case of misuse or breach of these quality control provisions, any warranties by WegscheidEntrenco GmbH with respect to the provided Products, are forfeit, void, deemed to be waived and inapplicable.

3.2.
WegscheidEntrenco GmbH provides its Products without insurance (unless otherwise specified in the individual Purchase Offer as accepted by a respective Purchase Order) but will package and deliver them (using shipping subcontractors) upon the Customer’s request. Package and delivery costs (including transport insurance and customs duties) are not included in the product price, unless so shown in the respective WegscheidEntrenco GmbH Purchase Offer as accepted by a respective Customer Purchase Order, and will be calculated (if not included in the Purchase Offer / Purchase Order) by WegscheidEntrenco GmbH on the basis of what is reasonable and customary in the industry.

 

Art. 4 Services: Maintenance, Operations, Engineering

 

4.1.
WegscheidEntrenco GmbH sells maintenance and operations services (“Maintenance Services”, “Operations Services”) on the basis of an individually tailored service plan as offered to each potential customer (“Service Plan Offer”) and the respective accepting service Purchase Order by the respective Customer.

If the Customer purchases Operations Services from WegscheidEntrenco GmbH, WegscheidEntrenco GmbH may, subject to the individual Service Plan Offer, monitor any products, particularly power plants, that are designated in such Service Plan Offer for up to 24 hours per day and up to seven days per week in order to ensure the smooth running of the product and monitor the quality standards of the feedstock. For such purpose, the products, particularly power plants, provided by WegscheidEntrenco GmbH may be equipped with an electronic monitoring and transmission device. Selected process parameters, that are necessary to fulfil the service obligations of WegscheidEntrenco GmbH from the individual Service Plan agreement, may be stored and transmitted to WegscheidEntrenco GmbH or to other entities commissioned by WegscheidEntrenco GmbH to process such data for it (commissioned data processing, “Auftragsdatenverarbeitung”). The Customer agrees that such data may be used for such purposes (only), with WegscheidEntrenco GmbH applying such reasonable data protection measures as applied in its own course of business.

4.2.
WegscheidEntrenco GmbH also sells engineering services (“Engineering Services”), in form of development, planning, design, drawings, calculations, creation of prototypes, testing and approval support, mass-production preparation, project support, certification measures, development services as well as other engineering services in the entire technical field of biomass combustion. Such engineering services are offered on the basis of individually tailored service plans as offered to each potential customer (“Service Plan Offer”) and the respective accepting service Purchase Order by the respective Customer.

4.3.
If Customer orders Engineering Services from WegscheidEntrenco GmbH in accordance with Art. 4.2. and the individual Service Plan Offer, the applicable contractual basis for the Engineering Services consists of: • the mutual written declarations of WegscheidEntrenco GmbH and the Customer, with the Customer’s requirement specification and CAD guidelines, if any exist and are applicable, plus • drawings, illustrations, constructions, plans, measurements, weights or other performance data provided by the Customer, plus • the order confirmation by WegscheidEntrenco GmbH (“Order Confirmation”), which further defines the scope of the Engineering Services. If no Order Confirmation or mutual written declarations exist, the Customer’s written order applies in reserve. The contractual basis specified above defines the Engineering Services as well as their delivery schedule and date of completion, if applicable. All other matters are governed by these Business Terms.

 

4.4.

WegscheidEntrenco GmbH shall be entitled to employ subcontractors to render the contractual services.

 

4.5.

If employees or agents of WegscheidEntrenco GmbH work at the Customer’s place of business, the Customer shall have no right to issue directives to them.

 

4.6.

If the Customer legally and effectively cancels, repeals, rebuts or otherwise terminates any contract for services with WegscheidEntrenco GmbH without cause for which WegscheidEntrenco GmbH is responsible or liable, then the Customer shall pay the full price for all services rendered up to the time of cancellation/termination plus an additional compensation of at least 15% of the agreed price for the services no longer to be rendered on account of the termination. WegscheidEntrenco GmbH shall have the right to claim a higher compensation based on § 648 sentence 2 BGB (German Civil Code).

 

4.7.

The Customer shall only be allowed to disclose know-how relating to WegscheidEntrenco GmbH’s services or assign the value of such services to such third parties that WegscheidEntrenco GmbH has consented to in writing prior to such disclosure or assignment. This requirement of consent shall also apply to subsidiaries and/or suppliers of the Customer. The Customer shall warrant and be liable for compliance with this provision.

 

 

Art. 5 Patents, Copyrights and Other Intellectual Property Rights, Protected Know-How

5.1.

WegscheidEntrenco GmbH reserves all patents, know-how, copyrights (in software as well as in other copyrightable matter), trademarks and other commercial property rights in and to all of its products and services (including engineering products

and services customized for a particular project even if contacted and/or paid for separately by the Customer) and the Customer is not permitted to disclose such material to third parties or use such material for other purposes than the entering into a contract with WegscheidEntrenco GmbH without the prior written consent of WegscheidEntrenco GmbH.

 

 

 

5.2.

WegscheidEntrenco GmbH also reserves all copyrights and commercial property rights in and to quotations, drawings, plans, models, tools and/or devices and other work results and other documents and auxiliary material (e.g. samples etc.) that are handed over during the contract preparation or execution phase. The Customer is not permitted to disclose such material to third parties or use such material for other purposes than the entering into a contract with WegscheidEntrenco GmbH without the prior written consent of WegscheidEntrenco GmbH.

 

5.3.

In the event that WegscheidEntrenco GmbH has created individual software in the course of the fulfilment of its contractual obligations, WegscheidEntrenco GmbH shall not be obliged to provide the source code to the Customer. As far as the creation of software by WegscheidEntrenco GmbH is the explicit subject of the agreement with the Customer, WegscheidEntrenco GmbH shall grant to the Customer a non-exclusive right to use such software in accordance with the intended purpose of the individual agreement. Duplication, transmission and use of such software for purposes not defined or contemplated in the individual agreement are not permitted. The exact extent of the IP licenses acquired by the Customer shall be established in a separate written “Non-Disclosure And License Agreement” with WegscheidEntrenco GmbH. Any waiver of this requirement of written form can only be made in writing

 

5.4.
In supplement to the objects specified in Art. 5.1. to 5.3., WegscheidEntrenco GmbH asserts its protected operative and business know-how. This also applies expressly to data which have been collected by WegscheidEntrenco GmbH and are transferred to a database at the Customer. The Customer shall not be permitted to further transmit or disclose such know-how, data and/or database software to third parties without the prior written consent of WegscheidEntrenco GmbH. Third parties also include any subsidiaries and/or suppliers of the Customer

 

Art. 6 Terms of Payment

6.1.

Unless other written agreements have been made, all invoices must be paid to WegscheidEntrenco GmbH net within 14 days of the date of invoice, WegscheidEntrenco GmbH receiving the payment in the currency designated in the invoice. Payment shall be effected, if not otherwise agreed upon in the individual order, in Euro, and by inter bank payment transaction only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.

 

6.2.

Any further payment arrangements are detailed in the respective Purchase Offer or Service Plan Offer by WegscheidEntrenco GmbH or an order confirmation by WegscheidEntrenco GmbH.

 

6.3.

If no payment has been made within 30 days after the invoice, the Customer is automatically in default. Starting from this payment deadline, the Customer must pay interest on the invoice amount at the legal interest rate of 9 percentage points above the then current basic rate of interest of the European Central Bank (ECB), as stipulated for businesses/merchants in § 288 (2) BGB. In addition, WegscheidEntrenco GmbH reserves the right to discontinue services including remote operation of the Hardware Products, so long as the Customer is in default due to non-payment. WegscheidEntrenco GmbH may cancel, after having granted a last adequate extension, the contract or suspend any further deliveries to the Customer.

 

6.4.

If these terms of payment or payment deadlines are not observed by the Customer or if there are any reasonable doubts concerning the Customer’s creditworthiness based on the consideration of its bank status, WegscheidEntrenco GmbH may at any time, at its choice and sole discretion, either demand concurrent performance (of services and cash payment), advance payment or provision of a collateral security (e.g. a bank guarantee) by the Customer. In this event, all of WegscheidEntrenco GmbH’s open receivables from the Customer for which payment in instalments was agreed upon or for which bills of exchange were accepted shall become due for payment immediately.

 

6.5.

The Customer may set off his obligations towards WegscheidEntrenco GmbH only with claims officially recognized by WegscheidEntrenco GmbH or claims which have become legally binding by way of a final judgment by a competent court of jurisdiction.

 

 

 

Art. 7 Terms of Delivery and Performance

 

7.1.

Unless another place of performance is indicated in WegscheidEntrenco GmbH’s offer or separately agreed upon in writing, WegscheidEntrenco GmbH shall perform any services for the Customer at its own company headquarters (of WegscheidEntrenco GmbH) or at any other location designated by WegscheidEntrenco GmbH in its sole discretion, and shipment of any products takes place at the Customer’s risk and expense.

 

7.2.

The right to issue directives to its employees, specifically to give instructions, guidance and supervision, remains solely with WegscheidEntrenco GmbH. The Customer shall confirm the progress of the order by submitting project status reports to WegscheidEntrenco GmbH.

 

7.3.

The time of performance for WegscheidEntrenco GmbH shall be as indicated in WegscheidEntrenco GmbH’s offer or separately agreed upon in writing based on the capabilities of WegscheidEntrenco GmbH and is non-binding as subject to WegscheidEntrenco GmbH timely receiving necessary supplies and subject to unforeseen or uncontrollable events and obstacles, specifically force majeure, government measures, customs duties, the failure to receive necessary permits by the relevant authorities, shipping delays, software errors due to no fault of WegscheidEntrenco GmbH and labour disputes or similar events, unless the parties have otherwise agreed in writing. The events listed above will extend WegscheidEntrenco GmbH’s performance deadline according to their duration, even if they happen during another delay that is already occurring. In this case, an extension of deadline already accepted by the Customer shall be further extended by the duration of the unforeseen or uncontrollable event. Regardless of other rights of withdrawal, the Customer may withdraw from any affected contract or agreement with WegscheidEntrenco GmbH if the described events result in a delay of performance that is not reasonably acceptable for the Customer (e.g. a delay by more than two months if such delay is not the result of modification plans on the part of the Customer or failure to assist and cooperate as described in 7.4.).

 

7.4.

The Customer must provide to WegscheidEntrenco GmbH or its employees and subcontractors, if applicable, all necessary information, documents and data as well as all other necessary support for WegscheidEntrenco GmbH’s performance in time and free of charge. The Customer shall bear the sole responsibility for the documents and information provided by the Customer as being complete and correct and shall be liable for their not infringing on any intellectual property rights of third parties. WegscheidEntrenco GmbH shall pay no compensation for damages that are the result of the Customer failing to fulfill its obligation to cooperate.

 

7.5.

If WegscheidEntrenco GmbH cannot be reasonably expected to perform its contractual obligations, even within an appropriate extension of its deadline, as a result of the events specified in Art. 7.3., WegscheidEntrenco GmbH shall have the right to withdraw from any affected contract or agreement in whole or in part after so notifying the Customer. In this event, all damage claims due to non-performance starting from this time of withdrawal shall be mutually excluded. For clarification: WegscheidEntrenco GmbH shall be released of its duty to perform if, due to the events specified in 7.3. (in particular force majeure), its delivery of products or performance of services has become impossible or can no longer be reasonably expected, and if WegscheidEntrenco GmbH withdraws from its contractual obligations on that basis

 

7.6.

WegscheidEntrenco GmbH shall have the right for partial delivery as far as reasonable.

 

Art. 8 Assembly work

 

8.1.
If the Services to be provided by WegscheidEntrenco GmbH include any assembly work, the Customer shall provide, at its own expense, the necessary support staff, required items such as tools, computing time and similar things, as well as power. The Customer shall also safeguard so that materials and tools of WegscheidEntrenco GmbH can be safely stored at the

Customer’s business premises.

8.2.
Timely before the start of the assembly work, the Customer shall provide, without request, all necessary information on the location of existing power lines, gas and water pipes or similar systems as well as the required static details.

8.3.
If the assembly work or the start of operation is delayed as a result of factors for which the Customer is responsible, the Customer shall bear the extra costs for any non-utilization times and/or additional working hours as well as any extra travel expenses of the staff of WegscheidEntrenco GmbH and/or its subcontractors that have become necessary as a result of the delay.

 

Art. 9 Inspection and Acceptance, Transfer of Risk

9.1.
WegscheidEntrenco GmbH will deliver the Products to the Customer with a Delivery Note. Upon acceptance of the delivery, the Customer shall promptly examine the completeness of the products and services delivered by WegscheidEntrenco GmbH within 20 days and their conformity with the contractual requirements defined in the respective WegscheidEntrenco GmbH Purchase Offer accepted by the Customer’s Purchase Order and shall issue a certificate of acceptance if the Products comply with the terms of the contract with the Customer regarding type, quality and quantity.

9.2.
As far as the contract is for Engineering Services or Maintenance and Operations Services (“Work”), WegscheidEntrenco GmbH shall have the right to demand acceptance and partial acceptance of the performed Work if such Work has been performed as contractually stipulated and may demand partial acceptance after the respective project level has been completed according to contract. The Customer shall inspect the performance or partial performance for acceptance within three weeks after it has been notified that the Work or partial Work is ready for acceptance and shall sign an according acceptance protocol for each inspection. If the Customer fails to accept the Work or partial Work within the period specified above even though he is obligated to do so, or if inspection for acceptance does not take place for reasons that are within the responsibility of the Customer, the Work or partial Work shall be considered accepted by the Customer not earlier than three weeks after he has been notified that the Work was ready for acceptance, and thereafter when the Customer has started using the work.

9.3.
The risk shall be transferred to the Customer when the Products are sent off to shipment (including to a shipping subcontractor). In case the Products are to be delivered at WegscheidEntrenco GmbH premises the risk shall be transferred at that time when WegscheidEntrenco GmbH notifies the Customer that the Products are available for collection. The same applies to the performance of Work from the moment it is accepted or deemed accepted.

 

Art. 10 Retention of Title

10.1.
All objects that WegscheidEntrenco GmbH must deliver as part of its contractual obligations, including, but not limited to, plans, calculations, prototypes, accompanying materials, project plans, data storage devices and/or other materials (“Reserved Goods”), shall remain the property of WegscheidEntrenco GmbH at least until all payments to WegscheidEntrenco GmbH arising from the respective contract/agreement have been received by WegscheidEntrenco GmbH.

10.2.
If the Customer is in default of payment, for current or future services of WegscheidEntrenco GmbH and does not remedy such default within 14 days of written notice, or if the Customer becomes subject to bankruptcy proceedings, civil rehabilitation proceedings or corporate reorganization proceedings, commences winding up or liquidation proceedings, or ceases to carry on its business, WegscheidEntrenco GmbH may withdraw from the agreement and if it claims damages instead of performance, it shall be entitled to enter the Customer’s business premises and seize the Reserved Goods. In case a refund is due after the return of an object, WegscheidEntrenco GmbH and the Customer agree that such refund shall be made at the common market value of the respective Reserved Good at the time of return.

10.3.
If WegscheidEntrenco GmbH delivers objects, data storage devices, prototypes, CAD models and other items to the Customer for test and presentation purposes, these items remain not only Reserved Goods, but also subject to its reservation of intellectual property rights. The Customer shall have the right to use such items for only the contemplated test and presentation purposes and in a manner that retains the confidentiality of such items. Any further use of such items is strictly prohibited, unless allowed by a pertinent separate written agreement with WegscheidEntrenco GmbH.

10.4
Until title to the Reserved Goods has passed to the Customer pursuant to the foregoing, the Customer shall insure the Products with a reputable insurance company for their full replacement value against all risks and shall keep the Reserved Goods in good repair and condition and bear the costs for this. Until transfer of title, the Customer is not entitled to pledge, transfer ownership as security, lease or otherwise dispose of the Reserved Goods without WegscheidEntrenco GmbH’s prior written approval.

10.5.
If a Reserved Good is processed by the Customer, it is agreed that the processing is carried out in the name and for the account of WegscheidEntrenco GmbH as manufacturer and that WegscheidEntrenco GmbH directly acquires ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the Reserved Good – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the Reserved Good to the value of the newly created item.
In the event that no such acquisition of ownership should occur with WegscheidEntrenco GmbH, the Customer hereby assigns to the WegscheidEntrenco GmbH as security his future ownership or – in the above-mentioned ratio – co-ownership of the newly created object. If the Reserved Good is combined or inseparably mixed with other objects to form a uniform object and if one of the other objects is to be regarded as the main object, WegscheidEntrenco GmbH shall, insofar as the main object belongs to him, assign to the Customer proportionate co-ownership of the uniform object in the ratio specified in sentence 1.

10.6.
In the event of resale of the Reserved Good, the Customer hereby assigns to WegscheidEntrenco GmbH by way of security the resulting claim against the buyer- in the case of co-ownership of WegscheidEntrenco GmbH in the Reserved Good proportionally in accordance with the proportion of co-ownership. The same shall apply to other claims which take the place of the Reserved Good or otherwise arise with regard to the Reserved Good, such as insurance claims or claims from unauthorised action in the event of loss or destruction.

10.7.
If third parties seize the Reserved Good, in particular by attachment, the Customer shall immediately inform them of WegscheidEntrenco GmbH’s ownership and inform WegscheidEntrenco GmbH thereof in order to enable it to enforce its ownership rights. If the Customer fails to do so in due time, he will be held liable for any damages caused. If the third party is not in a position to reimburse WegscheidEntrenco GmbH for the court or out-of-court costs incurred in this connection, the Customer shall be liable to WegscheidEntrenco GmbH for this.

10.8.
WegscheidEntrenco GmbH shall on demand of the Customer release any part of the collateral if the value of the collateral held in favour of WegscheidEntrenco GmbH exceeds the value of the claims being secured.

 

 

Art. 11 Warranties and Exclusion Clauses

11.1.
The Customer shall examine the Products according to Art. 9.1. and as required by German Law (§ 377 HGB (German Commercial Code)). With regard to obvious defects or other defects which would have been recognisable in an immediate, careful inspection, they shall be deemed to have been approved by the Customer if WegscheidEntrenco GmbH does not receive a written notice of defects within 10 working days after delivery. With respect to other defects, the Products shall be deemed to be approved by the Customer if WegscheidEntrenco GmbH does not receive a written notice of defect within 10 working days after the date on which the defect became apparent.

11.2.

The warranty period shall be 24 months from the date of first commercial operation, but no longer than 30 months from the moment of delivery or the transfer of risk, whichever one is earlier; the length of the time limitation period for damages claims shall be governed by Art. 12.3. The statutory warranty period applies to damages from injury to life, body or health and to damages from intentional or negligent breach of duty by a legal representative of WegscheidEntrenco GmbH or a person used to perform an obligation of WegscheidEntrenco GmbH.

 

11.3

With regard to Third Party Products all warranty claims of the Customer against WegscheidEntrenco GmbH are excluded. WegscheidEntrenco GmbH assigns all warranty claims against the respective seller of such Third Party Products to the Customer.

 

11.4

Certain parts of the Products are to be considered wear parts, including but not limited to the parts listed in Annex 11.4 (“Wear Parts”). With regard to the Wear Parts, all warranty claims of the Customer against WegscheidEntrenco GmbH are excluded.

11.5. If a measurement is the basis for the contractual performance of WegscheidEntrenco GmbH, the measurements specified on data storage devices, drawings, constructions, CDs, etc. shall be binding. WegscheidEntrenco GmbH assumes no liability beyond this.

 

11.6.

As far as the Customer timely and duly submits complaints about any defects or deviations, WegscheidEntrenco GmbH shall be obligated to remedy these promptly. The parties agree that WegscheidEntrenco GmbH shall have the right to attempt to remedy the same defect at least twice. Depending on the specific circumstances, it may be appropriate to grant another additional opportunity to remedy. WegscheidEntrenco GmbH shall have the right to, at its discretion, make a replacement delivery in lieu of remedy. The Customer shall grant WegscheidEntrenco GmbH sufficient time and opportunity to perform any remedy actions that appear to be reasonably necessary at his place of business or the production site during customary working hours. If the attempts to remedy fail repeatedly within an appropriate time period, the Customer shall be entitled to either demand a reduction of the agreed remuneration or a cancellation of the respective contract.

 

11.7.

WegscheidEntrenco GmbH can assume no liability for the compliance of any program functions with any further requirements of the Customer or for their working together within the constellation chosen by the Customer unless the respective requirements have been specified in the individual contract by way of written agreement.

 

11.8.

Excluded from any warranty and liability are, in particular, any defects or damages which were caused by improper use or maintenance, operating errors and negligent behaviour on the part of the Customer or persons that may be considered Customer’s agents, any products resulting from them, any consequential damages, and any defects and damages that result from fire, lightning, explosion or overvoltage in the grid, wrong or defective software and/or processing data as well as all wear parts , or from damage resulting from relocation of the Products. The Customer shall prove that any occurred fire, lightning, explosion, overvoltage in the grid, wrong or defective software and/or processing data or affected wear parts, were not the cause of the indicated defects or damages. Any warranty shall furthermore be forfeit, void, deemed to be waived and inapplicable if WegscheidEntrenco GmbH’s work products have been interfered with or other modifications have been made by persons other than WegscheidEntrenco GmbH or third parties authorized to do so by WegscheidEntrenco GmbH during the warranty period. For clarification: if the customer did not follow the operating manual and critical components were damaged as a result, the warranty is no longer valid. In case of any defects or damages, that could be related to the improper usage of material as outlined in 3.1b, the customer needs to provide evidence that certified material has been used.

 

11.9.

Warranty is not transferable and warranty claims are not assignable.

 

11.10.

If the inspection of a claimed defect reveals that no warranty event has occurred (i.e. that the raised issue is not under warranty), WegscheidEntrenco GmbH shall be entitled to claim and bill the work and all expenses (including, but not limited to, for travel and accommodations, of WegscheidEntrenco GmbH engineers, the market price of replacement parts etc.) that were reasonably necessary to address the raised warranty issue unless those are insignificant. WegscheidEntrenco GmbH shall also be entitled to a reasonable security payment covering such potential invoice if the warranty issue raised requires travel for WegscheidEntrenco GmbH engineers of more than 50km.

 

11.11.

If the customer has relocated any WegscheidEntrenco GmbH Products to another location than specified in the Purchase Order / delivery terms, WegscheidEntrenco GmbH shall be entitled to claim all travel and accommodation costs that were reasonably necessary for addressing any raised warranty issue(s), irrespective of the fact whether or not the issue is or was, in fact, under warranty or not.

 

 

Art. 12 Liability

12.1.
WegscheidEntrenco GmbH shall only be liable for

1. a) damages from injury to life, body or health due to negligent breach of duty by WegscheidEntrenco GmbH or intentional or negligent breach of duty by a legal representative of WegscheidEntrenco GmbH or a person used to perform an obligation of WegscheidEntrenco GmbH, as well as for
2. b) damages arising from a grossly negligent breach of duty by WegscheidEntrenco GmbH or from an intentional or grossly negligent breach of duty by a legal representative of WegscheidEntrenco GmbH or a person used to perform an obligation of WegscheidEntrenco GmbH, as well as for
3. c) damages arising from its breach of essential contractual duties inherent in the nature of the contract to such an extent that attainment of the purpose of the contract is jeopardised by their breach. All other liability shall be excluded.

Also any personal liability of the executive directors of WegscheidEntrenco GmbH, its agents and employees as well as used subcontractors shall be excluded for damage they have caused through simple or slight negligence.

12.2.
ANY LIABILITY REMAINING ACCORDING TO PARAGRAPH 1 SHALL BE LIMITED SO THAT WegscheidEntrenco GmbH IS NOT LIABLE FOR UNPREDICTABLE DAMAGES, ANY INDIRECT AND/OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND LOST BUSINESS OPPORTUNITIES. FOR CLARIFICATION: WegscheidEntrenco GmbH’S LIABILITY SHALL BE LIMITED IN ANY EVENT TO SUCH DIRECT AND TYPICAL DAMAGES THAT COULD BE EXPECTED AT THE TIME THE CONTRACT WAS SIGNED. FOR FURTHER CLARIFICATION: WegscheidEntrenco GmbH SHALL NOT BE LIABLE FOR DATA, LOST PROFITS OR ANY OTHER INDIRECT OR CONSEQUENTIAL DAMAGES INSOFAR AS THERE IS NO INTENT, NO GROSS NEGLIGENCE, NO VIOLATION OF ESSENTIAL CONTRACTUAL DUTIES AND NO LACK OF GUARANTEED FEATURES ON THE PART OF WegscheidEntrenco GmbH. FOR FURTHER CLARIFICATION: UNDER NO CIRCUMSTANCES SHALL WegscheidEntrenco GmbH BY LIABLE FOR ANY UNPREDICTABLE, INDIRECT AND/OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND LOST BUSINESS OPPORTUNITIES.

 

12.3.
Damage claims of the Customer shall become statute-barred within 12 months. The statutory warranty period applies to damages from injury to life, body or health and to damages from intentional or negligent breach of duty by a legal representative of WegscheidEntrenco GmbH or a person used to perform an obligation of WegscheidEntrenco GmbH.

12.4.

Notwithstanding the above limitations of liability, WegscheidEntrenco GmbH – regardless of its culpability – shall be liable if it conceals a defect in bad faith, if it has assumed a guarantee or if it is liable pursuant to the laws on product liability.

12.5.
If any damage is covered by insurance taken out by the Customer, WegscheidEntrenco GmbH shall only be liable for the disadvantages suffered by the Customer on account of the claim settlement, such as a higher insurance premium or lost interest.

12.6.

The consequences of delayed delivery are determined in Art. 7 of these Business Terms. If there is a delay in delivery for which WegscheidEntrenco GmbH is at fault, the Customer has to notify WegscheidEntrenco GmbH. The Customer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.25% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 3% of the delivery value of the goods delivered late. WegscheidEntrenco GmbH has the right to prove that the Customer has not suffered any damage at all or that the damage suffered is considerably less than the above lump-sum compensation. Any further claims of the Customer for delay in delivery are excluded.

 

12.7.

Except for cases of intent or gross negligence, in particular in cases of simple negligence in breach of essential contractual duties, the amount of damages that is owed per damage event shall be limited to 100% of the order value.

 

 

Art. 13 Confidentiality/Non-Disclosure

 

The parties shall hold all documents and information provided to them or learned by them in the context of the contractual relationship in strict confidence, in particular not disclose them to third parties without the prior written consent of the other party. The duty of confidentiality shall not apply as far as the document and/or information were obviously generally known beforehand or demonstrably provided to the other party by a third party without violation of a duty of confidentiality. The Customer shall include all of its employees, agents and subcontractors in this duty of confidentiality. The duty of confidentiality survives any termination of contract. This duty of confidentiality shall be further detailed in a separate written “Non-Disclosure And License Agreement” that is to be concluded between the parties. This shall not limit or restrict Art. 5.3 and the Customer’s obligations under Art. 5.4 of these Business Terms.

Art. 14 Labour piracy

 

The Customer pledges to refrain from labour piracy regarding the staff of WegscheidEntrenco GmbH during performance of any order and for one year afterwards, whether on the initiative of the employee or of the Customer. Labour piracy or any attempt to pirate employees of WegscheidEntrenco GmbH shall constitute a serious breach of contract. In the event of effective labour piracy, the Customer shall pay to WegscheidEntrenco GmbH damages in the amount of six months of the gross salary of the pirated employee. In turn, WegscheidEntrenco GmbH pledges not to pirate employees of the Customer.

 

 

 

 

 

Art. 15 Data protection

 

WegscheidEntrenco GmbH shall be entitled to process data about the Customer which it has obtained through the business relationship or in connection with it according to the provisions of th e European Data Protection Act (DSGVO), whether the data originated from the Customer itself or from third parties. This notice replaces the notice according to the DSGVO that personal data about the Customer will be stored and processed by electronic data processing (EDP). As far as no other arrangement has expressly been made in writing, the Customer declares his consent that WegscheidEntrenco GmbH uses the pertinent project as a business reference naming the Customer.

 

 

Art. 16 Miscellaneous Provisions

16.1.
To become effective, any changes and/or amendments to any contract and/or agreements between the parties and/or to these Business Terms require the written form. This also applies to any waiver of the written-form requirement itself.

16.2.
If one or more provisions of these Business Terms should be invalid, ineffective, or unenforceable, this does not affect the validity of the remaining provisions. The parties shall replace or amend the invalid, ineffective or unenforceable provision with appropriate valid, effective, and enforceable provisions that best comply with the economic purpose intended by the invalid, ineffective or unenforceable original provisions.

16.3.
Sonnen, Germany shall be the place of performance of all mutual obligations, including, but not limited to, any and all performance obligations of WegscheidEntrenco GmbH and any and all payment obligations of Customer. As far as Customer is a business within the meaning of § 14 BGB or has its headquarters outside of the Federal Republic of Germany, sole place of jurisdiction and venue for all claims arising out of or in connection with the contractual relationship between the parties governed by these Business Terms shall be Munich, Germany.

16.4.
The contractual relationship between the parties governed by these Business Terms shall be exclusively subject to the laws of the Federal Republic of Germany, excluding its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply.

 

 

WegscheidEntrenco GmbH

06.11.2023