General terms and conditions.

General terms and conditions of sale and delivery

WIMA Wilsdruffer Maschinen- und Anlagenbau GmbH D-01723 Wilsdruff
(Prepared based on the VDMA recommendations as of 03/2022)

I. General

1. All deliveries and services are subject to these terms and conditions and any separate contractual agreements. Deviating terms and conditions of purchase of the purchaser shall not become part of the contract even if the order is accepted. In the absence of a special agreement, a contract is concluded with the supplier’s written order confirmation.
2. the supplier reserves the right to samples, cost estimates, drawings and the like. The supplier reserves ownership rights and copyrights to samples, cost estimates, drawings and similar information of a physical and non-physical nature – also in electronic form: they may not be made accessible to third parties.

II. Price and Payments

1. In the absence of a special agreement, the prices shall apply ex works including loading at the works, but excluding packaging and unloading. Value added tax at the respective statutory rate shall be added to the prices.
2. In the absence of a special agreement, payment shall be made without deduction to the supplier’s account, namely: 1/3 down payment after receipt of the order confirmation, 1/3 as soon as the customer has been informed that the main parts are ready for dispatch, the remainder within one month after transfer of risk.
3. The purchaser shall only be entitled to withhold payments or offset them against counterclaims insofar as his counterclaims are undisputed or have been legally established.

III. Delivery Time, Delivery Delay

1. The delivery time is determined by the agreements of the contracting parties. Compliance by the supplier requires that all commercial and technical issues between the contracting parties have been resolved and the purchaser has fulfilled all obligations, such as providing the required official certificates or permits, or making a down payment. If this is not the case, the delivery time is extended accordingly. This does not apply if the supplier is responsible for the delay.
2. Compliance with the delivery deadline is subject to correct and timely self-delivery. The supplier will inform the purchaser of any emerging delays as soon as possible.
3. The delivery time is considered to be met if the delivered item has left the supplier’s factory by the expiry of the delivery time or if the readiness for dispatch has been reported. If acceptance is to take place, the acceptance date – except in the case of justified refusal of acceptance – is decisive, alternatively the notification of readiness for acceptance.
4. If shipping or acceptance of the delivered item is delayed for reasons for which the purchaser is responsible, the costs incurred due to the delay will be charged to the purchaser, beginning one month after notification of readiness for shipment or acceptance.
5. If the non-compliance with the delivery time is due to force majeure, labour disputes, or other events beyond the control of the supplier, the delivery time is extended appropriately. The supplier will inform the purchaser of the beginning and end of such circumstances as soon as possible.
6. The purchaser may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for the supplier before the transfer of risk. The purchaser may also withdraw from the contract if, when placing an order, the execution of part of the delivery becomes impossible and he has a legitimate interest in rejecting the partial delivery. If this is not the case, the purchaser must pay the contract price attributable to the partial delivery. The same applies in the case of incapacity of the supplier. Furthermore, section VII.2 applies. If the impossibility or incapacity occurs during the purchaser’s delay in acceptance or if the purchaser is solely or largely responsible for these circumstances, the purchaser remains obligated to provide consideration.
7. If the supplier is in default and the purchaser incurs damages as a result, the purchaser is entitled to demand a lump-sum default compensation. This amounts to 0.5% for each full week of delay, but not more than 5% of the value of that part of the total delivery which, due to the delay, cannot be used in a timely or contractual manner. If the purchaser – taking into account the statutory exceptions after the due date – sets a reasonable deadline for delivery and the deadline is not met, the purchaser is entitled to withdraw within the scope of the statutory provisions. Further claims arising from delivery delays are governed exclusively by section VII.2 of these terms and conditions.

IV. Transfer of Risk, Acceptance

1. The risk passes to the purchaser when the delivery item has left the factory, even if partial deliveries are made or the supplier has also taken over other services, such as shipping costs or delivery and installation. If acceptance is to take place, this is decisive for the transfer of risk. It must be carried out immediately by the acceptance date, alternatively after the supplier has notified of readiness for acceptance. The purchaser may not refuse acceptance in the event of a non-essential defect.
2. If shipping or acceptance is delayed or fails to occur due to circumstances not attributable to the supplier, the risk passes to the purchaser from the date of notification of readiness for shipping or acceptance. The supplier undertakes, at the purchaser’s expense, to take out the insurance policies requested by the purchaser.
3. Partial deliveries are not permissible unless reasonable for the purchaser.

V. Retention of Title

1. The supplier retains ownership of the delivery item until all payments from the delivery contract have been received.
2. The supplier is entitled to ensure the delivery item at the purchaser’s expense against theft, breakage, fire, water, and other damages, unless the purchaser has demonstrably taken out the insurance themselves.
3. The purchaser may neither sell, pledge, nor transfer the delivery item as security. In the event of seizure or other dispositions by third parties, the purchaser must immediately notify the supplier.
4. In the event of the purchaser’s breach of contract, especially in the case of payment default, the supplier is entitled to demand the return of the delivery item after a reminder and the purchaser is obliged to return it.
5. Due to the retention of title, the supplier can only demand the return of the delivery item if they have withdrawn from the contract.
6. The application for the opening of insolvency proceedings entitles the supplier to withdraw from the contract and demand the immediate return of the delivery item.

VI. Claims for Defects
For material and legal defects of the delivery, the supplier provides a guarantee – excluding further claims – subject to section VII as follows:

Material Defects

1. All parts are to be repaired free of charge at the supplier’s choice or replaced free of defects, which turn out to be defective due to circumstances occurring before the transfer of risk. The purchaser must immediately report such defects to the supplier in writing. Replaced parts become the property of the supplier.
2. The purchaser must allow the supplier the necessary time and opportunity to carry out all necessary repairs and replacement deliveries, after consulting with the supplier; otherwise, the supplier is released from liability for the resulting consequences. Only in urgent cases of endangerment to operational safety or to avert disproportionately large damages, with immediate notification to the supplier, the purchaser has the right to have the defect remedied by themselves or by third parties and to demand reimbursement of the necessary expenses from the supplier.
3. Of the direct costs incurred by the repair or replacement delivery, the supplier – provided the complaint proves to be justified – bears the costs of the replacement part including shipping. The supplier also bears the costs of disassembly and reassembly, as well as the costs of any necessary provision of the necessary fitters and assistants, including travel expenses, provided that this does not unreasonably burden the supplier.
4. Within the framework of the statutory provisions, the purchaser has the right to withdraw from the contract if the supplier – taking into account the statutory exceptions – allows a reasonable period of time set by them for the repair or replacement delivery for a material defect to pass without performing such actions. If only an insignificant defect is present, the purchaser is only entitled to a reduction in the contract price. The right to a reduction in the contract price is otherwise excluded. Further claims are determined in accordance with section VII.2 of these terms and conditions.

   No guarantee is assumed, in particular, in the following cases: Unsuitable or improper use, incorrect assembly or commissioning by the purchaser or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electronic, or electrical influences – unless they are attributable to the supplier.

   If the purchaser or third parties carry out improper repairs, the supplier is not liable for the resulting consequences. The same applies to changes to the delivery item made without the prior consent of the supplier.

Legal Defects

1. In the event that the delivery item is used in the UK to infringe on commercial property rights or copyrights, the supplier is generally responsible for enabling the purchaser to continue using the item, or modifying the delivery item in a way that the infringement no longer exists, at the supplier’s expense. If this is not economically feasible or achievable within a reasonable timeframe, the purchaser is entitled to withdraw from the contract. Under these conditions, the supplier also has the right to withdraw from the contract. Furthermore, the supplier will indemnify the purchaser against any uncontested or legally recognized claims made by the relevant rights holders.

   The obligations of the supplier listed in Section VI are conclusively subject to Section VII.2 in the case of infringement of intellectual property rights. They apply only if:
   – The purchaser promptly informs the supplier of any existing intellectual property rights infringements;
   – The purchaser reasonably supports the supplier in defending against the claims made or enables the supplier to carry out the modification measures according to Section VI, 7.
   – All defence measures, including out-of-court settlements, remain reserved to the supplier;
   – The legal defect is not based on an instruction from the purchaser and the infringement is not caused by the purchaser modifying the delivery item independently or using it in a manner that deviates from the contract.

VII. Liability

1. If, due to the supplier’s fault, the delivery item cannot be used as contractually intended by the purchaser as a result of omitted or incorrect execution of, suggestions and advice made before or after conclusion of the contract, or the breach of other contractual ancillary obligations – particularly instructions for the operation and maintenance of the delivery item – then, excluding any further claims by the purchaser, the provisions of Sections VI. and VII. 2. shall apply accordingly.

2. The supplier shall only be liable for damages incurred by the purchaser that are not caused by the delivery item itself, for whatever legal reason, under the following conditions:
   a) In cases of wilful intent,
   b) In cases of gross negligence by the owner/principal or executive employees,
   c) In cases of culpable injury to life, body, or health
   d) In cases of defects that were fraudulently concealed or whose absence was guaranteed by the supplier
   e) In cases of defects of the delivery item for which liability is incurred under the Product Liability Act for personal or property damage to privately used items.

3. In the event of a culpable breach of essential contractual obligations, the supplier shall also be liable for gross negligence by non-executive employees and for slight negligence, in the latter case limited to the typical, foreseeable damage for the contract. Further claims are excluded.

VIII. Limitation Period

All claims by the purchaser – for whatever legal reason – shall be time-barred after 12 months. The statutory periods shall apply to claims for damages under Section VII. 2. a – e. They also apply to defects in a building or in delivery items that have been used for a building in accordance with their usual intended purpose and have caused its defective condition.

IX. Software Protection

To the extent that software is included in the scope of delivery, the purchaser is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the designated delivery item. Use of the software on more than one system is prohibited. The purchaser may only reproduce, modify, translate, or convert the software from the object code into a form permitted by law (Section 69a ff. UrhG) to the extent legally permissible. The purchaser undertakes not to remove or alter manufacturer information – in particular, copyright notices – without the prior express consent of the supplier.
All other rights to the software and the documentation, including copies thereof, remain with the supplier or the software supplier. The granting of sublicenses is not permitted.

X. Applicable Law, Jurisdiction

1. For all legal relationships between the supplier and the purchaser, only the law of the Federal Republic of Germany, which is applicable to legal relationships between domestic parties, shall apply.

2. The court of jurisdiction shall be the court having jurisdiction over the supplier’s registered office. However, the supplier is entitled to file a lawsuit at the principal place of business of the purchaser.

 Updated: December 2007