SCOPE OF APPLICATION
1.1 These Standard Terms and Conditions constitute the exclusive contractual basis for all sales of goods and deliveries (hereinafter referred to as the “Sale of Goods”), for all training sessions and seminars (hereinafter referred to as the “Training Sessions”) and for all other services and consulting provided (hereinafter referred to as the “Services”) that are offered and provided by the company Waterjet Production Academy GmbH (hereinafter referred to as “WPA”) in relation to entrepreneurs (hereinafter referred to as the “Customer”). These Standard Terms and Conditions do not apply to consumers as defined in Sec. 13 of the German Civil Code (BGB).
1.2 These Standard Terms and Conditions also apply to all future contractual relations and hence also in the absence of an express reference to them in supplementary agreements. References to the application of statutory provisions are made for clarification purposes only. Statutory provisions therefore apply without such clarification unless they are directly amended or expressly excluded under these Standard Terms and Conditions.
1.3. Conflicting or divergent standard terms and conditions or terms of purchase of the Customer shall not be accepted by WPA unless WPA has given its express consent to their application. No matter how such terms are worded, the dispatch of the goods shall not constitute any acceptance of such terms, transfer of ownership in the goods shall take place solely in accordance with the present Standard Terms and Conditions. The objection to such conflicting terms shall be upheld even if WPA does not make another express declaration prior to, during or after conclusion of the contract.
SPECIFIC TERMS FOR TRAINING SESSIONS
2.1 Registration for Training Sessions shall be addressed to WPA in writing by post, fax, e-mail or via the internet. Registration by the Customer shall be deemed a binding offer to conclude a contract. In case of failure to reach the stated minimum number of participants for the relevant Training Session, WPA may withdraw from the contract up to 14 days before the start of the Training Session. The Customer shall be informed about the next possible alternative dates by WPA with regard to Training Sessions that are already fully booked or for which the minimum number of participants is not reached.
2.2 The price of the Training Sessions includes: (a) provision of the required materials and premises for the duration of the Training Session; (b) instruction in the contents of the training according to the training specifications; (c) all necessary training documents in German or English depending on availability; (d) beverages during breaks and lunch during full-day events; and (e) a personal certificate of participation. All other costs incurred by the Customer such as, for example, travel and overnight costs, are not included in the fees for Training Sessions.
2.3. The Customer may cancel Training Sessions free of charge up to 4 calendar weeks before they begin. A cancellation fee amounting to 50% of the fee for the Training Session will be charged between the 30th and the 8th calendar day before the Training Session commences unless the Customer was entitled to prematurely terminate the relevant contract during that period. A cancellation fee of 100% applies as of the 7th calendar day before the Training Session commences unless the Customer was entitled to prematurely terminate the relevant contract during that period. In each individual case the Customer is entitled to prove that WPA has not incurred any loss or merely a loss significantly lower than the above-mentioned lump-sum fees. A substitute participant for the Training Session may be appointed at any time without additional costs.
2.4. All prices and fees are in Euros, in each case subject to statutory VAT. Prices and fees are shown in the offer issued by WPA in writing or in text form, in the training brochures in force and among the current prices indicated on the website www.wpa-gmbh.com. The payment deadline is 14 days after the invoice date, without a cash discount. The participation fee is payable before the Training Session booked commences, even where this shortens the payment deadline. The statutory provisions set out in Secs. 286 and 288 of the German Civil Code (BGB) apply to default interest. WPA reserves the right to exclude Customers who have not fulfilled their payment obligation from Training Sessions.
SPECIFIC TERMS FOR SERVICES
3.1 The scope of a specific consulting assignment shall be agreed individually by contract between the Customer and WPA. WPA is entitled to cause the tasks entrusted to it to be performed wholly or partly by third parties. The contracting partners (Customer and WPA) agree on reciprocal loyalty.
3.2. The Customer shall ensure that all framework terms enable, if possible, undisturbed work conducive to the expeditious progress of the consulting process, during execution of the consulting assignment at its principal office. In particular, the Customer shall provide WPA with access to the machinery and work resources constituting the subject-matter of the Services, and with the relevant necessary documents. The Customer shall also inform WPA in detail about previous and ongoing consulting provided by third parties insofar as it is relevant to WPA or to execution of the Services assignment. The Customer shall ensure that, even without a separate request, all documents necessary for execution and performance of the consulting assignment are presented to WPA in due time and that WPA is informed about all matters and circumstances relevant to performance of the consulting assignment. This also applies to all documents, matters and circumstances that only become known during the work performed by WPA.
3.3 Insofar as WPA recommends the use, installation on machinery of the Customer or other use of certain products of third parties within the context of its consulting services, WPA shall not be liable for the defective nature of such items unless the Customer purchases the product from WPA.
SPECIFIC TERMS FOR THE SALE OF GOODS
4. Terms of Delivery
4.1. If the Customer has not taken delivery of the goods within 3 days of their arrival at the place of delivery, WPA may cause the goods to be stored at the Customer’s expense.
4.2. Regarding sales specified by contract as being “ex warehouse”, the place of performance for both contracting partners is Karlsruhe unless otherwise indicated in the confirmation of order or in the offer of WPA. Insofar as the confirmation of order and the offer of WPA mention different places of performance, the confirmation of order as the later document shall govern.
4.3. Insofar as times and dates for unloading, dispatch, departure and arrival are indicated or determined by the calendar, they are approximate. Fixed dates and times are only agreed where they bear a corresponding, specific remark.
4.4. WPA is entitled to ship or dispatch the contractual goods in one or more sublots, with or without intermediate reloading provided such sublots amount to at least 25% of the quantity ordered.
4.5. Conclusion of contract shall be subject to correct and timely delivery to WPA by its sub-suppliers. The proviso of delivery by sub-suppliers only applies where WPA has entered into a congruent covering transaction with the sub-supplier.
4.6. Conclusion of contract shall be subject to the import and export licences or export permits required by WPA. If performance of the contract fails due to the lack of such a licence or permit, the Customer shall have no claims for damages or other claims against WPA. This shall not apply insofar as refusal to grant the licence or permit was caused by intent or gross negligence on the part of WPA.
5. Liability for Defects, Damages
5.1. The Customer shall inspect the goods without undue delay after they are delivered by WPA, and shall provide prompt notification of any defects, shortfalls in quantity or incorrect deliveries apparent upon a detailed inspection.
5.2. Hidden defects shall be notified promptly after they are discovered or become apparent to the Customer during normal use of the goods, without a more detailed inspection.
5.3. Receipt of the notification of defects by WPA shall govern compliance with deadlines. Notification of defects shall be provided in writing or in text form. The Customer loses all claims for defects with regard to defects not notified within the deadlines mentioned.
5.4. Insofar as the Customer has no recourse claim pursuant to the provisions on the purchase of consumer goods (Sec. 478, German Civil Code (BGB)), the following applies:
5.4.1. The contractual qualities of the goods are, as a matter of principle, set out in the product specifications alone. Public statements, promotion and advertising in relation to the goods do not constitute information as to qualities. Divergences in the range, quality, colour, weight, finishing or design of the goods that are customary in the trade or technically unavoidable may not be the object of complaints. The contractual qualities do not include the suitability of raw materials for a certain purpose.
5.4.2. If the rectification of defects or the provision of replacement goods (Nacherfüllung) is refused by WPA or fails, the Customer may reduce the purchase price or withdraw from the contract. Claims for damages shall remain unaffected.
5.5. Regarding export transactions, WPA shall not assume liability that the goods are free from third-party rights or claims based on industrial or other intellectual property rights, or for the possibility of importing the goods to the country of destination that the Customer desires. Verification of the situation regarding intellectual property rights in the country of destination is the responsibility of the Customer alone. The Customer agrees to provide written notification to WPA of conflicting intellectual property rights and import impediments regarding the goods in the country of destination, especially embargos, before the order is placed.
5.6. WPA shall not assume a guarantee in the legal sense of the term for the qualities or durability of the goods. Any claims against manufacturers shall remain unaffected.
5.7. WPA is liable for damages only in case of fault. The liability of WPA for damages, especially for breaches of duty, delays in performance and failure to provide performance at all or as owed, is excluded in case of ordinary negligence. This shall not apply in case of a negligent breach of material contractual duties by WPA, its statutory representatives or vicarious agents; in that case the liability of WPA shall be limited to foreseeable, direct damage typical for the type of contract. A material contractual duty exists if the breach of duties concerns a duty on compliance with which the Customer relied and was entitled to rely.
5.8. The Customer’s right to withdraw from the contract owing to a breach of duties that does not lie in a defect in the goods purchased only arises if WPA can be held responsible for such breach.
5.9. The Customer’s claims for defects shall become statute-barred one year after delivery of the goods unless mandatory statutory provisions provide for a longer limitation period. The limitation period in case of recourse claims concerning delivery under Secs. 478 and 479 of the German Civil Code (BGB) shall remain unaffected; this period is five (5) years as of delivery of the defective item to the Customer.
5.10. The above limitations on liability shall not apply in case of damage caused by injury to life, limb or health for which WPA is responsible, or in case of mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
6. Joint and Several Liability
6.1. Liability for damages going beyond that provided for in Clause 5 is excluded, no matter what the legal nature of the claim made may be. This applies especially to claims for damages based on fault at the time of conclusion of the contract, claims based on other breaches of duty or on tort pursuant to Sec. 823 of the German Civil Code (BGB).
6.2. The limitation according to Clause 6.1 also applies where, instead of damages, the Customer demands compensation for futile expenses in lieu of performance.
6.3. Insofar as the claim for damages against WPA is excluded or limited, this also applies with regard to personal liability for damages on the part of WPA’s employees, representatives and vicarious agents.
7. Terms of Payment
7.1. With regard to sales against the presentation of documents, payment shall be made immediately “net amount against presentation of documents” unless otherwise specified in the offer or confirmation of order issued by WPA. Insofar as the confirmation of order and the offer of WPA indicate different terms of payment, the confirmation of order as the later document shall govern.
7.2. Unless otherwise agreed, the terms of payment “net amount cash against presentation of invoice” apply, in which respect agreed discounts may be deducted.
7.3. A set-off or exercise of a right of retention by the Customer against invoice amounts that are due for goods delivered is permissible only insofar as the underlying claims are recognized by us or established by final judgment, or insofar as the counter-claim is connected with the goods invoiced. WPA is at liberty to assert the above-mentioned claims in court.
7.4. WPA is entitled to provide outstanding deliveries solely against advance payment or furnishing of a security if, after conclusion of the contract, it becomes aware of circumstances that could severely diminish the Customer’s creditworthiness or jeopardize payment of the outstanding amounts owed to WPA by the Customer under the relevant contractual relationship.
7.5. Bills of exchange and cheques shall be accepted as conditional payment only. Banking expenses and exchange costs etc. shall be borne by the Customer.
7.6. The purchase price shall be deemed paid when the amount is definitively available in the WPA account.
8. Retention of Title
8.1. The goods shall remain the property of WPA until full payment by the Customer. The Customer shall adequately insure the goods subject to retention of title against theft, breakage, fire and water damage.
8.2. The Customer shall take the necessary measures in order to establish or uphold the retention of title – or a comparable security right according to the law of the country of its business establishment or of a different country of destination – and shall present proof to WPA on request. Failure to comply shall amount to a significant breach of contract.
8.3. The Customer shall notify WPA promptly about attachment or any other impairment by third parties of WPA’s ownership of the goods. The costs sustained in order to avert intervention by third parties shall be reimbursed by the Customer. If the Customer becomes insolvent following receipt of the goods or having resold them, WPA may demand substitute consideration for an item that could have been separated (Ersatzaussonderung) pursuant to Sec. 48 of the German Insolvency Code (InsO, Insolvenzordnung), notwithstanding its property rights under Sec. 47 of the same Code.
9. Conclusion of contract via webshop
9.1 The GTC shall also apply to such contracts concluded online via WPA’s web shop The presentation of the products in WPA’s web shop does not constitute a legally binding offer, but merely a non-binding invitation to the client to submit an offer. Upon completion of the Customer’s order by clicking the button “order subject to payment”, the Customer submits a binding offer to conclude a contract for the products in the shopping basket. Before concluding the order, the Customer may once again check his order data on a separate page, make corrections if necessary and remove products from the shopping basket or replace them with others.
9.2 WPA will confirm the receipt of the customer’s electronic order by sending an automatic confirmation of receipt by e-mail. This confirmation of receipt does not constitute a binding acceptance of the client’s offer. It merely serves to inform the customer of the receipt of his order. The contract is only concluded by a separate order confirmation from WPA or at the latest upon delivery of the products. WPA shall be free not to accept orders from the customer; the decision as to whether or not to do so shall be at the discretion of WPA.
9.3 After an electronic order by the client via WPA’s web shop, the individual order data of the client shall be stored by WPA. The customer may view and retrieve his order data via his customer account after completion of the order process. In addition, each customer may print out his order data during the execution of his order and will receive this again in the automatic confirmation of receipt (including the general terms and conditions included in the contract). The current version of the GTC can also be called up and printed out at any time via the WPA website. Contracts via the webshop shall be concluded in German or English.
Translated with www.DeepL.com/Translator
10.1. Place of exclusive jurisdiction is Karlsruhe. However, WPA is also entitled to file suit at the court having jurisdiction for the Customer and at any court having jurisdiction under national or international law.
10.2. Application of the law of the Federal Republic of Germany alone is agreed between the parties, to the exclusion of the provisions of private international law and the CISG.
10.3. The invalidity of individual provisions in these Standard Terms and Conditions shall not affect the validity of the remaining provisions hereof.
As at: 9/2018