General terms and conditions of business of WIMO-Herbetechnik GmbH
1. All deliveries and services shall be subject to these terms and conditions, as well as any separate contractual agreements. Any deviating terms and conditions of purchase of the Customer shall not become part of the contract, even following acceptance of the order.
Unless otherwise agreed, a contract shall come into existence on the written order confirmation of the Supplier.
2. The Supplier shall retain ownership rights and copyright in respect of samples, quotations, drawings and similar information of a physical and non-physical nature - they may not be made accessible to third parties. In respect of information and documents designated as confidential by the Customer, the Supplier shall be obliged to only make these accessible to third parties with the permission of the Customer.
II. Price and payment
1. Unless otherwise agreed, the prices shall apply ex-factory including loading at the factory, however exclusive of packaging and unloading. The prices shall be subject to value added tax to the applicable statutory amount.
2. Unless otherwise agreed, payment shall be made without any discount to the bank account of the Supplier as follows:
1/3 deposit following order confirmation, 1/3 following notification to the Customer that the main parts are ready for shipment and the remainder within one month of the transfer of risk.
3. The right to retain payments or set off with counterclaims shall only be available to the Customer to the extent that its counterclaims are undisputed or have been legally recognised.
III. Delivery time, delivery delay
1. The delivery time shall be in accordance with the agreements concluded between the contracting parties. The condition for compliance with the delivery time by the Supplier shall be that all business and technical questions between the contracting parties have been clarified and that the Customer has fulfilled all obligations incumbent upon it, such as the provision of the necessary official certifications or permits, or payment of a deposit. Should this not be the case, the delivery time shall be reasonably extended. This shall not apply if the Supplier is responsible for the delay.
2. The compliance with the delivery time shall be subject to correct and timely delivery to the Supplier. The Supplier shall provide notification of any expected delays as soon as possible.
3. The delivery time shall be considered as having been complied with if the object of delivery has left the factory of the Supplier or the delivery readiness has been notified prior to its expiry. To the extent that acceptance must take place, the acceptance time shall be decisive or alternatively the notification of readiness for acceptance, except in cases of justified refusal of acceptance.
4. Should the dispatch or acceptance of the delivery object be delayed for reasons for which the Supplier is responsible, the costs incurred due to the delay shall be charged to the Supplier, beginning one month following notification of the readiness for dispatch or readiness for acceptance.
5. Should the non-compliance with the delivery date be due to force majeure, industrial disputes or other events which are outside of the control of the Supplier, the delivery time shall be reasonably extended. The Supplier shall notify the Customer of the start and end of such circumstances as soon as possible.
6. The Customer shall be entitled to rescind the contract without giving notice should the Supplier be finally unable to provide the full serviced prior to the transfer of risk. In addition, the Customer shall be entitled to rescind the contract if the performance of part of a delivery becomes impossible in respect of an order and the Customer has a legitimate interest in the refusal of the partial delivery. Should this not be the case, the Customer shall pay the contract price which applies to the partial delivery. The same shall apply in case of inability of the Supplier. Otherwise, Section VII shall apply. 2.
Should the impossibility or inability arise during the delay in acceptance or should the Customer be solely or predominantly responsible for these circumstances, the Customer shall remain obliged to provide consideration.
7. Should the Supplier enter delay and should this cause a loss to the Customer, the Customer shall be entitled to demand a lump sum fee as delay compensation. For each full week of delay, this shall amount to 0.5%, however a maximum of 5%, of the value of the respective part of the overall delivery which cannot be used on time or in accordance with the contract as a result of the delay.
Should the Customer set the Supplier a reasonable deadline to provide delivery following the due date, taking into account the statutory exceptions, and should the deadline not be complied with, the Customer shall be entitled to rescind the contract within the framework of the statutory regulations. On the request of the Supplier, the Customer shall be obliged to provide information within a reasonable period of time, concerning whether it intends to exercise its right of rescission.
Further claims due to delivery delay shall be determined exclusively by Section VII 3 of these terms and conditions.
IV. Transfer of risk, acceptance
1. The risk shall be transferred to the Customer once the object of delivery has left the factory and also in case of the provision of partial deliveries or if the Supplier has also agreed to provide other services, such as shipment costs or delivery and installation. To the extent that an acceptance is to take place, this shall be decisive for the transfer of risk. This must be carried out immediately at the time of acceptance, alternatively following notification of the Supplier concerning the readiness for acceptance. The Customer shall not be entitled to refuse acceptance in case of the presence of insignificant defects.
2. Should the dispatch or acceptance be delayed or not take place due to circumstances for which the Supplier is not responsible, the risk shall be transferred to the Customer from the day of notification of readiness for dispatch or readiness for acceptance. The Supplier shall be obliged to conclude the insurance policies which the Customer requests at the latter's expense.
3. Partial deliveries shall be permitted, to the extent that these are reasonable for the Customer.
V. Reservation of ownership
1. The Supplier shall retain ownership in respect of the object of delivery until receipt of all payments - also for any applicable additional services rendered - from the delivery amount. In case of payment default, the Supplier shall be entitled to retake possession of the object of delivery following the issuing of a warning and the Customer shall be obliged to surrender the property. This shall also apply in case of other behaviour of the Customer which breaches the contract.
2. The Supplier shall only be entitled to demand surrender of the object of delivery due to retention of ownership if it has rescinded the contract. In case of seizures or other third party attacks, the Customer shall immediately inform the Supplier of such.
3. An application for the opening of insolvency proceedings against the assets of the Customer shall entitle the Supplier to immediately rescind the contract and to demand the immediate return of the object of delivery.
4. The Customer shall be entitled to sell on the object of delivery within the course of proper business dealings. However, the Customer shall assign to the Supplier all claims which are accrued to it against the consumer or third parties as a result of the subsequent sale. The Customer shall also be entitled to collect the said claim following assignment. The authority of the Supplier to collect the claim itself shall not be affected thereby.
5. The authority to collect claims shall lapse:
- if the Customer enters default in respect of its payment obligations towards the Supplier
- if it is revoked or
- if an application for the opening of insolvency proceedings is submitted.
6. In such a case, the Supplier shall be entitled to request that the Customer:
- informs it of the assigned claims and its debtors,
- gives all information necessary for collection,
- hands over the associated documents and
- notifies the debtors of the assignment, unless this has already been undertaken by the Supplier.
7. Should the object of delivery be sold on with other goods which do not belong to the Supplier, the claim of the Customer against the consumer shall be deemed to have been assigned to the amount of the delivery price agreed between the Supplier and Customer.
VI. Defect claims
Subject to Section VII, the Supplier shall be liable for material defects and defects of title as follows, to the exclusion of further claims:
1. All parts which prove to be defective due to circumstances prior to the transfer of risk shall be corrected or replaced free of defects for free in accordance with the choice of the Supplier. The discovery of such defects shall be reported to the Supplier immediately in writing. Replaced parts shall become the property of the Supplier.
2. In agreement with the Supplier, the Customer shall grant the Supplier the necessary time and opportunity to carry out all corrections and replacement deliveries which the Supplier deems necessary; otherwise, the Supplier shall be released from any liability in respect of the consequences which result. The Customer shall only have the right to deal with the defect itself or have the corrections carried out by a third party and request reimbursement of the necessary expenses from the Supplier in urgent cases of endangerment of operational safety or in order to protect against disproportionately severe damage.
3. The direct costs incurred by the correction and replacement delivery and the costs of replacement parts including shipment shall be borne by the Supplier, provided that the complaint is shown to be justified. The Supplier shall also bear the costs of removal and installation, as well as the expenses connected to the necessary provision of fitters and auxiliary personnel including travel expenses, provided this does not cause any disproportionate burden on the part of the Supplier.
4. Within the framework of the statutory regulations, the Customer shall have the right to rescind the contract if the Supplier fails to provide correction or replacement delivery within a reasonable period of grace granted by the Customer, taking into account the statutory exceptions. Should only an insignificant defect be present, the Customer shall only be entitled to a reduction of the contract price. The right to reduction of the contract price shall otherwise be excluded.
Further claims shall be determined exclusively by Section VII. 2 of these terms and conditions.
5. In the following cases, no liability shall be assumed:
Unsuitable or improper use, defective assembly/putting into operation by the Customer or third parties, natural wear and tear, defective or negligent treatment, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences - unless the Supplier is responsible for these.
6. Should the Customer or a third party carry out improper corrections, the Supplier shall not be liable in respect of the consequences which arise. The same shall apply in respect of changes to the object of delivery which are carried out without the prior agreement of the Supplier.
Defects of title
7. Should the use of the contractual products lead to infringement of commercial property rights or copyright in Germany, the Supplier shall, as a rule, and at its own expense, facilitate the right of further use or modify the contractual products for the Customer in a manner which is reasonable for the Customer, in such a way that the property right infringement no longer exists.
Should this not be possible in accordance with reasonable economic terms or within a reasonable period of time, the Customer shall be entitled to rescind the contract. The Supplier shall also be entitled to rescind the contract in accordance with the named prerequisites.
In addition, the Supplier shall release the Customer from undisputed or legally recognised claims of the property right holders concerned.
8. The obligations of the Supplier named in Section VII 7 are conclusive in case of infringement of property rights or copyright, subject to Section VII 2.
These shall only exist if:
the Customer immediately informs the Supplier of the infringements of property rights or copyright which are being asserted,
the Customer supports the Supplier to a reasonable extent in the defence of the claims which are being asserted and facilitates the implementation of the
modification measures in accordance with Section VI 7 for the Supplier,
the Supplier retains the right to take all defensive measures, including out of court regulations,
the defect of title does not refer to an instruction of the Customer and
the breach of rights was not caused by the Customer changing the object of delivery in an unauthorised manner.
VII. Liability of the Supplier, exclusion of liability
1. Should the object of delivery not be able to be used by the Customer in accordance with the contract due to fault on the part of the Supplier connected to neglected or defective implementation of proposals and advice which arose prior to or following conclusion of the contract, or due to breach of other contractual ancillary obligations, in particular concerning instructions for the use and maintenance of the object of delivery, the regulations of Sections VI and VII shall apply, to the exclusion of further claims of the Customer. 2.
2. The Supplier shall only be liable for damage which is not caused to the object of delivery itself in the following cases, regardless of legal reasons:
a) In case of intent,
b) In case of gross negligence on the part of the owner/the organs or management employees,
c) In case of culpable injury to life, body or health,
d) In case of defects which it has fraudulently concealed,
e) Within the framework of a guarantee undertaking,
f) In case of defects to the object of delivery, to the extent that liability is incurred under the German Product Liability Act (Produkthaftungsgesetz) for personal injury or damage to property in respect of privately used objects.
In case of culpable violation of significant contractual obligations, the Supplier shall also be liable in respect of the gross negligence of non-management staff and in case of simple negligence, in the latter case limited to the reasonable and foreseeable loss which is typical of the contract.
Further claims shall be excluded.
VIII. Statute of limitation
All claims on the part of the Customer shall lapse in 12 months, regardless of legal reasons. The statutory deadlines shall apply in respect of damages claims in accordance with Section VII 2 a-d and f. These shall also apply in respect of construction defects or for delivery objects which were used for construction in accordance with their usual manner of use and caused its defectiveness.
IX. Software use
To the extent that software is included in the delivery scope, a non-exclusive right to use the delivered software, including its documentation, shall be granted to the Customer The software shall be transferred for use on the intended object of delivery. Use of the software on more than one system is forbidden.
The Customer shall only be permitted to duplicate, revise, translate or convert from the object code into the source code to the extent permitted by law (§§ 69 a ff of the German Copyright Act - UrhG). The Customer shall be obliged not to remove manufacturer details, in particular copyright notices, or to change these without the prior express agreement of the Supplier.
All other rights in respect of the software and documentation, including the copies, shall remain with the Supplier and the software provider. The issuing of sub-licences is not permitted.
X. Applicable law, place of jurisdiction
1. All legal relations between the Supplier and the Customer shall be governed exclusively by the law of the Federal Republic of Germany.
2. The place of jurisdiction shall be the competent court of the place of business of the Supplier. However, the Supplier shall be entitled to bring lawsuits at the main place of business of the Customer.