General Terms and Conditions of Sale and Delivery
WEMAG GmbH & Co. KG General Terms and Conditions of Sale and Delivery – ("WEMAG") (as of March 2002 – amended 05/2019)
I. General Terms
1. These General Terms and Conditions of Sale and Delivery shall exclusively apply for the entire business relationship between WEMAG and the purchaser, including future business relationships. We do not accept and hereby reject any General Terms and Conditions of the purchaser. They shall not apply. WEMAG shall be entitled to change its General Terms and Conditions of Sale and Delivery upon notice thereof, for the entire future business relationship with the purchaser.
2. In the event of an existing contract agreement between the purchaser and WEMAG, these General Terms and Conditions of Sale and Delivery shall apply to both agreements.
II. Conclusion of Contract
1. Offers submitted by WEMAG are non-binding. All documents submitted with an offer, such as illustrations, drawings, weights and measurements, show approximate values unless expressly declared a binding value. Drawings or technical documents relating to the technical object of purchase to be delivered remain the property of WEMAG.
2. Order placements are binding for the purchaser. Provided WEMAG did not generate a written order confirmation, delivery and/or invoice shall be considered as order confirmation.
3. If the purchaser is a merchant, the contents of all orders and agreements shall be defined exclusively authoritative per written confirmation as generated by WEMAG insofar as the purchaser does not immediately object in writing. This applies in particular to verbal or telephone order placements and agreements. In either event, a notification of objection to WEMAG is not considered immediate if it has not been received by WEMAG within seven days.
III. Delivery Date, Scope of Delivery, Delay in Delivery
1. All delivery dates and periods are approximations only and regarded non-binding, unless WEMAG expressly agreed a binding deadline or a fixed date in writing. In the event of a delay in the clarification of all details of an order placement as well as the timely fulfilment of all of the purchaser's obligations, delivery periods and dates shall be deemed to be extended by the period of time during which the purchaser fails to fulfill his obligations. Delivery periods shall be considered to have been met with the notification of readiness for shipment.
2. WEMAG may perform partial deliveries, provided such action would not fall short of a reasonable minimum amount.
3. The customer shall inspect and confirm the delivery note. Any discrepancies must be reported to WEMAG immediately in writing. In all other events, the delivered quantity will be regarded to be accepted as correct.
4. The delivery period shall be extended in the event of interruption of operations, official measures, non-arrival of deliveries to WEMAG's suppliers or force majeure. Industrial disputes including strikes and lawful lockouts at WEMAG or its suppliers is also considered force majeure. With regards to section VII (General Limitations of Liability) customer's claims to compensation are excluded. Where damage is incured to the purchaser due to a delivery delay caused by WEMAG's the purchaser may claim damage compensation, excluding further-reaching damage compensation claims, to the amount of 0.5% for each week of delay, but at maximum 5% of the value of the respective affected part of the total consignment. In the event delivery is delayed, the purchaser may define an appropriate period of grace in writing, explicitly declaring that upon expiry of such deadline extension he retains the right to refuse transfer/delivery and shall be entitled to withdraw from the contract. Further claims based on delay in delivery, in particular claims for damage compensation, are excluded in accordance with the provisions in section VII (General Limitations of Liability).
IV. Prices, Terms of Payment
1. Prices do not include VAT, freight, customs, insurance or other expences. Authoritative for the calculation of brand new machines are the prices valid on the day of delivery. Packaging shall be invoiced at cost price, return of materials is excluded.
2. For orders exceeding EUR 150.00 net we deliver free of charge. For a net value from EUR 75.00 up to EUR 149.99 we invoice freight- and packing charges of EUR 3.90 only. Below EUR 75.00 we proportionate charge EUR 7.90 within Germany. Excepted from this are tool machines, dangerous goods, as well as workshop equipment and other bulk items. Deliveries out of Germany are Ex works (EXW), according to Incoterms 2010.
3. Unless otherwise agreed, our General Terms of Payment are: receipt of payment within 10 days from date of invoice less 2 % discount or within 30 days from date of invoice net without deduction.
4. Should the purchaser default on payment, WEMAG shall be reserved to: Irrespective of further claims, the debtor has to pay 12 % default interest annually in the event of late payment, thereby not preventing proof of lower damages, or at least the statutory interest rate pursuant to § 288 BGB (German Civil Code).
5. The purchaser shall only be entitled to offset amounts of payment in cases where his counterclaims are established by due legal process, are undisputed or recognized as accepted by WEMAG.
V. Transfer of Risk, Acceptance
1. Risk shall transfer to the purchaser with initial loading or dispatch of the delivery item, even when partial deliveries are made or WEMAG provides additional services , i.e. bearing shipping or delivery costs and installation and/or commissioning expenses. Should the deliverable item be subject to acceptance, then acceptance is decisive with regard to the passing of risk. Acceptance must be carried out immediately on acceptance date, or alternatively upon supplier's notification of readiness for acceptance and must not be refused by the purchaser on the grounds of a minor defect.
2. If dispatch or acceptance is delayed due to reasons for which WEMAG is not responsible, the risk shall pass to the purchaser from the day of notification of readiness for dispatch or acceptance.
VI. Warranty, Complaint
1. WEMAG is liable for consignment defects to exclusion of all other claims as follows:
1.1 The warranty period for new products for private use (Purchase of Consumer Goods, § 474 BGB [German Civil Code]) from passing of risk 24 months, for commercial and/or predominantly professional use 12 months.
1.2. The warranty period for used products is 12 months, begining with the transfer of risk for private use (Sale of Consumer Goods, § 474 BGB[German Civil Code]), commercial and/or professional use excludes warranty. Used machines are delivered with any remaining accessories in the condition in which they where at the time of contract conclusion. All liability for visible or concealed defects is excluded even if the machine was not previously inspected by the purchaser, unless WEMAG intentionally and/or with gross negligence concealed known defects from the purchaser.
2. The provisions from section 1 do not apply to guaranteed features or a culpable violation of essential contractual obligations. Purchaser claims of such nature as well as claims for damages, which did not occur on the delivery item itself, are excluded in accordance with the provisions of section VII (General Limitations of Liability) to the extent permitted by law. Repairs or replacement of supplied goods within the framework of the warranty shall not warrant a new beginning of the warranty period.
3. Features are only warranted when they are expressly designated as such in the contract. Verbal information and information within WEMAG documents do not constitute assurances. Samples, examples, dimensions, DIN specifications, performance specifications and other information concerning the delivery item are intended to specify the item and are not guaranteed properties. Insofar as the materials to be used by WEMAG are contractually specified, this only ensures conformity with the specification, not the suitability of the materials for the contractual purpose. WEMAG is obligated to notify only in the event of obvious unsuitability.
4. Damage caused by external influence, improper installation and handling, inadequate operation or maintenance, corrosion or normal wear and tear are excluded from the warranty. Warranty for the aforementioned does not extend in particular to the wear and tear of wearing parts. Wearing parts include all rotating parts, all engine components and tools. These warranty provisions are intended and established for machines sold for use in single-shift operations.
5. The purchaser is obligated to promptly inspect the the delivered goods upon receipt and at his own expense, and to notify WEMAG promptly in writing about any defects, incorrect deliveries, obviously not permissable deliveries, or incorrect amounts. A period of seven days for notifying defects from receipt of delivery shall apply. Hidden defects must be reported to WEMAG in writing immediately upon discovery. §§ 377,378 HGB (German Commercial Code) shall remain unaffected in the case of bilateral commercial transactions between merchants.
6. Any quality defects of a partial delivery do not constitute an entitlement to reject the remainder of the full quantity, unless the purchaser can prove that the acceptance of only one part of the delivery is unreasonable for him upon considering the circumstances.
7. Should the purchaser notice a defect, he may not alter the delivery item, process it or pass it on to third parties, but must rather provide WEMAG sufficient opportunty and time to convince themselves of the defect and, if necessary, carry out the required subsequent performance (repair or replacement); otherwise, all defect claims shall lapse. Only under urgent circumstances of endangerment to operational safety or to prevent disproportionately large damages, whereby WEMAG must be notified immediately, is the purchaser entitled to correct a defect himself or to have it corrected by a third party and to claim reimbursement from WEMAG for any necessary expenses. Irrespective of the existence of a defect, the warranty claims shall expire in the event the purchaser or a third party performs modifications or repair work without WEMAG's prior approval.
8. Shipping damages must be reported immediately to WEMAG. The purchaser is required to settle the necessary formalities with the freight forwarder, in particular the recording of all necessary findings as evidence to exercise rights of recourse action against third parties. Provided customary breakage, loss and the like, customary in the trade, remain within tolerable limits, such claims may not be made the subject of complaint.
9. In the event of a justified warranty claim, WEMAG may elect to repair the defect or deliver a replacement at their discretion. Multiple repairs or improvements are permissible.
10. In the event of remedial action WEMAG is liable for all expenses, in particular expenses for shipping, delivery, work and materials, provided that these have not been incurred by the fact that the goods had to be delivered to a place other than the place of fulfilment.
11. In the event WEMAG fails to meet a reasonable deadline for the performance in accordance with § 439 BGB (German Civil Code) without remedying the problem or delivering a replacement, or a rework as well as a delivery of spare parts proves impossible, goes wrong or for other reasons is refused by WEMAG, the purchaser, who is not a consumer, has the right to rescind from the contract or reduce the purchase price under exclusion of all further delivery object relevant claims.
12. Voluntary redemtion - We voluntarily take back our properly and faultless delivered goods under the following circumstances:
(1) Returning of goods (returns) are accepted within 14 days upon delivery, provided the goods are unused and in their original packaging and sent free of charge for us upon presentation of a bill or delivery note copy. This requires a prior notification and coordination of the return.
(2) Returns under 25 € net value of goods per position are not taken back.
(3) In case of a return, a processing fee of 20% of the credit value applies, plus the statutory VAT.
(4) Special purchases and measuring tools are excluded from returns and exchanges.
VII. General Limitation of Liability
1. If the delivery item cannot be used by the purchaser as stipulated in the contract through negligence of WEMAG based on omission or incorrect consultation before or after contract conclusion or due to breach of other ancillary contractual obligations (e.g. operating- or maintenance instructions), the provisions of sections VI and VII.2 shall apply accordingly, further claims of the purchaser are excluded.
2. WEMAG shall only be liable for damages not incurred to the delivered item itself, – regardless of their legal basis - only in case of wilful intent, gross negligence of the owner / corporate bodies or executive staff, in the event of culpable injury to life, limb, and health, in the event of defects maliciously concealed or the absence of such which had been guaranteed, as well as for defects of the delivered goods insofar as a liability exists under the Product Liability Act for personal injury or material damage to privately used items.
In the event of culpable breach of fundamental contractual obligations, WEMAG shall also be liable for gross negligence of non-executive employees as well as for cases of slight negligence, but limited in the latter case to reasonably foreseeable damage typical for this kind of contract; further claims are excluded.
VIII. Reservation of Proprietary Rights, Collateral
WEMAG reserves the proprietary rights of our goods until contractual confirmation of all payments is received. In the event of purchaser breach of contract, in particular default of payment, as well as a filing for the opening of insolvency proceedings, WEMAG is entitled to take back the delivery item upon a reminder, and the purchaser is obligated to surrender the items. In the event of seizure or other interventions on part of a third party, the purchaser is obligated to inform WEMAG immediately in writing.
2. WEMAG is entitled to insure the delivery items against theft, breakage, fire, water and other damages at the purchasers expense, unless the purchaser furnishes evidence of having concluded such an insurance himself.
3. The purchaser is authorized to resell goods within the course of regular business. However, the purchaser shall herewith transfer all claims which accrue to him from the resale of the items to customers or third parties to WEMAG, irrespective of whether the secured goods have been resold without or upon processing. The purchaser is entitled to collect such claims, even after the transfer of claims. WEMAG's entitlement to collect the receivables ourselves shall remain unaffected, however we undertake not to collect the receivables so long as the purchaser fulfils his payment obligations. WEMAG is authorized to demand the disclosure of transferred claims from the purchaser and their debtors, the disclosure of data necessary for collection, the handing over of necessary documents and to inform debtors about the transfer of claims. Should the delivered item have been resold together with other goods that do not belong to WEMAG, the purchaser's claim against his customer are regarded as assigned for the amount of the delivery price stipulated between WEMAG and the purchaser.
4. Processing or modification of the goods to which we hold ownership shall always be conducted by the purchaser on behalf of WEMAG. In the event goods subject to retention of title have been processed or inseparably modified with other non-WEMAG items, WEMAG acquires co-ownership of the new item in proportion of the value of the reserved item to the other processed or modified items at the time of processing or modifying. If WEMAG goods subject to retention of title have been combined with other mobile items form a unitary item or become inseparably bonded or the other item is to be regarded as the main item, it shall be deemed agreed that the purchaser assigns co-ownership to WEMAG on a pro rata basis, insofar as the main item belongs to him. The purchaser shall hold the property or co-ownership for WEMAG. The same applies to the item resulting from being processed, transformed or modified as for the goods subject to reservation of title.
5. WEMAG is entitled to request the appropriate collateral security for all liabilities due from the purchaser. WEMAG undertakes to release the securities to which it is entitled insofar as their value exceeds the claims to be secured by more than 20% to the extent they have not yet been settled.
IX. Performance Obligation, Inability and Non-performance
1. WEMAG delivery obligations and delivery deadlindes are subject to the reservation of the proper, complete and punctual self-delivery.
2. If WEMAG is unable to perform the entire contract prior to the passing of risk due to circumstances for which WEMAG is responsible, the purchaser may withdraw from the contract. In the event of partial performance or inability, the aforementioned provision applies to the relevant part only. In such event, however, the purchaser can withdraw from the overall contract if he can prove a justifiable interest in refusing the partial delivery. Further claims of the purchaser, in particular claims for damages, are excluded in accordance with the provisions of sections VI and VII.
3. Should the inability to perform occur during the delay in acceptance or is caused by fault of the purchaser, the purchaser remains liable to fulfill.