General Terms and Conditions of West Beach Dynamics GmbH
Scope of Application
Our offers, services, and deliveries are made exclusively on the basis of these terms and conditions. These terms and conditions are deemed to have been accepted at the latest upon receipt of the goods or services. Counter-confirmations with reference to your own terms and conditions are hereby expressly rejected.
Written individual agreements take precedence over these terms and conditions.
Offer
Our offers are always subject to change and non-binding.
We reserve the right to make technical and design deviations from descriptions and information in brochures, catalogs, and written documents, as well as changes in the course of technical progress, without this giving rise to any rights against us.
Prices
All prices are quoted ex Gladbeck. Only our legal representatives are authorized to negotiate prices without special written authorization; acting on the basis of apparent authority or implied authority or in accordance with § 50 ff. HGB (German Commercial Code) is expressly not sufficient for this purpose. Individual price agreements made by persons not authorized or empowered in accordance with the above sentence must be confirmed by a person authorized or empowered in accordance with the above sentence.
Prices that are clearly intended exclusively for commercial customers are subject to statutory value added tax in case of doubt.
Delivery and Performance Time
The dates and deadlines we specify are non-binding unless expressly agreed otherwise in writing.
All delivery commitments and dates are subject to correct and timely delivery to us.
Delivery and service delays due to force majeure and/or events that make it significantly more difficult or impossible for us to perform, e.g., operational disruptions, strikes, difficulties in procuring materials, official orders, etc., entitle us to postpone delivery for the duration of the hindrance plus a reasonable start-up period, or to withdraw from the contract in whole or in part due to the unfulfilled part. We will inform the customer immediately of the impairments and, in the event of withdrawal, immediately reimburse the customer for any payments already made.
Furthermore, we shall only be in default if the customer has set us a grace period of at least one month in writing. In the event of default, the customer shall be entitled to compensation for default in the amount of 0.5% for each full week of default, but in total up to 5% of the invoice value of the deliveries and services affected by the default. Furthermore, claims of any kind, in particular claims for damages, are excluded.
Warranty and liability
The warranty period for new goods is 24 months from the date of transfer of risk for consumers and 12 months for businesses. For used goods, the warranty period for consumers is 12 months; for businesses, the warranty is excluded.
We are only obliged to provide rectification or replacement delivery if the customer has fulfilled their contractual obligations in full.
Only bodies authorized to represent the company or persons authorized in writing by them are authorized to enter into agreements regarding a specific quality; apparent authority, implied authority, or acting on the basis of Section 50 et seq. of the German Commercial Code (HGB) is not sufficient for this purpose.
We shall be liable for intent and gross negligence in accordance with the statutory provisions. In cases of slight negligence, we shall only be liable if a material contractual obligation (cardinal obligation) has been breached or if there is a case of delay or impossibility. In the event of liability for slight negligence, this liability shall be limited to damages that are foreseeable or typical, but shall not exceed the agreed remuneration. This limitation of liability also applies in the case of liability for slight negligence in the event of initial inability on our part. Liability for a specific quality, for malice, for personal injury, for defects of title, under the Product Liability Act and the Federal Data Protection Act remains unaffected.
In the event of machine damage, power cuts, strikes, operational and traffic disruptions that make fulfillment impossible or impede it, we shall not be liable for the duration of the disruption, provided that the disruption was significant and unforeseeable.
All other and further claims of the customer against us – regardless of their legal basis and even if they are non-contractual – are excluded. This applies in particular to any consequential damage caused by defects, including all losses incurred by the customer as a result of business interruption or loss of production.
The limitation period for non-material breaches of contract is limited to two years.
All claims against us are non-transferable without written consent and can only be asserted by the customer themselves.
Retention of Title
We retain title to the delivered goods until full payment has been made for the goods, and in the case of entrepreneurs, until all claims to which we are entitled and which are still outstanding have been paid, regardless of the legal basis.
Processing or transformation shall always be carried out on our behalf, but without any obligation on our part. If our (co-)ownership expires due to combination, it is hereby agreed that the customer’s (co-)ownership of the uniform item shall be transferred to us on a pro rata basis (invoice value). The customer shall store our (co-)ownership free of charge. Goods to which we are entitled to (co-)ownership are hereinafter referred to as reserved goods.
The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business, provided that they are not in default. Pledging or transfer by way of security is not permitted. The customer hereby assigns to us in full, by way of security, all claims arising from the resale or any other legal reason in relation to the goods subject to retention of title. We authorize the customer, in a manner that is revocable at any time, to collect the claims assigned to us for his invoices in his own name. At our request, the customer must disclose the assignment and provide and submit the necessary information and documents.
In the event of third-party access to the goods subject to retention of title, in particular in the event of seizure, the customer must indicate our ownership and notify us immediately. Any costs incurred shall be borne by the customer.
In the event of breach of contract by the customer, in particular default in payment, we shall be entitled to take back the goods subject to retention of title at the customer’s expense or, if necessary, to demand assignment of the customer’s claim for surrender against third parties. The taking back or seizure of the goods subject to retention of title by us shall not be deemed a withdrawal from the contract, unless the German Installment Purchase Law (Abzahlungsgesetz) applies.
Payment
Unless otherwise agreed, our invoices are due for payment immediately without deduction.
We are entitled to offset payments against the customer’s older debts first, despite any provisions to the contrary on the part of the customer. If costs and interest have already been incurred, the payments shall be offset against the costs, then against the interest and finally against the principal claim.
If the customer defaults on payment, we shall be entitled to charge interest at the standard bank rate from the relevant date, but at least at the statutory rate.
If the customer fails to meet their payment obligations in accordance with the contract, or if they suspend payments, or if we become aware of other circumstances that call into question the customer’s creditworthiness, we shall be entitled to demand payment of the entire remaining debt, advance payments, or security deposits.
The customer is only entitled to offset if counterclaims are undisputed, ready for decision in pending legal proceedings, or have been legally established.
Protection and copyrights
The ownership and copyright of the software supplied by us, the printed accompanying material, and all copies of the software remain with the software manufacturer. The software is protected by copyright and the provisions of international treaties. The customer must therefore treat the software like any other copyrighted material, with the exception that they may either (a) make a single copy of the software solely for backup or archiving purposes, or (b) install the software on a single computer, provided that the original is kept solely for backup and archiving purposes. The customer is only entitled to copy any printed materials accompanying the software with the written permission of the software manufacturer.
The customer is obliged to inform us immediately and in writing if they become aware of any infringement of industrial property rights and copyrights by a product delivered by us. We alone are entitled and obligated to defend the customer against claims by the owner of such rights and to settle these claims at our own expense, insofar as they are attributable to the direct infringement by a product delivered by us. We shall endeavor to obtain the right for the customer to use the product. If this is not possible under economically reasonable conditions, we shall, at our discretion, either modify the product so that the property right is not infringed or take back the product and refund the purchase price less compensation for the use made of it.
If the customer has modified the delivered product or integrated it into a system, or if we have designed the product in such a way that it infringes property rights based on instructions from the customer, the customer is obligated to defend us against claims by the owner of the infringed right or to indemnify us.
The customer is not entitled to reverse engineer, decompile, or disassemble the software.
Furthermore, he is not entitled to rent or lease the software.
The customer is entitled to permanently transfer all rights under this license agreement, provided that they do not retain any copies and transfer the complete software (including all components, media, printed material, and the license agreement). If the software is an update, any transfer must also contain all previous versions of the software. Software/standard software is sold according to the product description without any assurance of specific properties. When creating custom software, the service owed is determined by the specifications, which precisely define the scope of services, intended use, and conditions of use. These must be prepared by the customer before the contract is concluded. Upon request, we will assist the customer in drawing up the specifications, without this giving rise to any obligation on our part to cooperate within the meaning of § 645 BGB (German Civil Code). If the specifications are not completed by the time the contract is concluded, we shall be granted a reasonable period of time for review. Within this period, we may withdraw from the contract without giving reasons by means of a written declaration. Changes to the specifications or comments thereon shall only become part of the contract if they are confirmed by us in writing. The customer must accept the customized software in writing within a reasonable period of time after delivery in order to check that it is free of defects. The software shall be deemed accepted if it is used and neither acceptance nor written refusal of acceptance due to significant defects has been made within one month of program delivery. Services Projects can only be terminated in accordance with the contract at the end of the respective project phase in accordance with the service description. The content of the contract shall only be the respective scope of services set out in writing at the beginning of the project. Contract amendments are only possible with the written confirmation of the contractor. The contractor is not obliged to make significant contract amendments. The client undertakes to extend agreed deadlines appropriately in the event of contract amendments.
Export
The export of our software to non-EU countries requires our written consent, regardless of whether the customer is obliged to comply with the statutory import and export regulations.
Place of performance, place of jurisdiction, and applicable law
The place of performance is Gladbeck.
In dealings with customers within the meaning of Section 310 (1) sentence 1 of the German Civil Code (BGB), Gladbeck is agreed as the place of jurisdiction, unless Sections 38 and 40 of the German Code of Civil Procedure (ZPO) dictate otherwise.
The law of the Federal Republic of Germany applies exclusively. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
Final provisions
The obligations in electronic commerce pursuant to Section 312e (1) Nos. 1 to 3 and (2) of the German Civil Code (BGB) are waived in relation to contractual partners who are not consumers.
