General terms and conditions of sale and delivery
1.1 These Terms of Sale and Delivery Applicable to WMF Coffeemakers and Equipment (hereinafter, these “Terms of Sale and Delivery”) apply to all deliveries, services and offerings provided by WMF. At the latest, these Terms of Sale and Delivery shall be deemed to have been accepted upon acceptance of the goods or services. Unless expressly agreed to by WMF, none of the customer’s conflicting general terms or conditions or general terms or conditions which deviate from these Terms of Sale and Delivery shall be accepted by WMF. These Terms of Sale and Delivery also shall apply if and when WMF executes a delivery to the customer without reservation despite WMF’s knowledge of the customer’s conflicting or deviating general terms or conditions.
1.2 These Terms of Sale and Delivery shall apply only vis-à-vis entrepreneurs conducting their commercial or self-employed professional activities and vis-à-vis corporate bodies under public law pursuant to §§ 14 and 310 of the Civil Code of Germany (Bürgerliches Gesetzbuch, BGB) and unless agreed upon otherwise also shall apply to all future business transactions with WMF even if they are not referenced.
1.3 These Terms of Sale and Delivery shall apply to work and services. In the case of work, delivery shall be deemed complete at the time of acceptance of such work; in the case of services, delivery shall be deemed complete at the time of receipt of such services.
2. Quotations and Formation of Contracts
2.1 Quotations issued by WMF shall be subject to change and shall not be binding.
2.2 Orders shall become binding on WMF upon WMF’s written or express confirmation thereof (including by way of an invoice or delivery note) or upon WMF’s execution of such order including, but not limited to, WMF shipping the respective products. All other agreements shall be subject to written confirmation by WMF. The same shall apply to amendments, changes and side agreements.
2.3 WMF reserves all proprietary rights, copyrights and other industrial property rights in any and all documents regarding quotations. Documents regarding quotations shall not be made accessible to third parties. At WMF’s request, the customer shall return any and all documents regarding quotations to WMF provided such documents no longer are required in the ordinary course of business. The same shall apply to all other documents, drafts, samples, designs and models.
2.4 The products offered in the WMF CoffeeConnect online shop shall not be deemed to be offers to enter into contracts; they merely are invitations to place orders. When placing an order in the online shop, the customer can select the respective WMF products and place them in the shopping cart. The customer’s order becomes binding if and when the customer clicks the Buy Now button in the Shopping Cart section at the end of the ordering process. The customer can edit the data he/she provides in the online shop and the contents of the shopping cart at any time before clicking the Buy Now button or can abort the ordering process by leaving the online shop. WMF shall save the text of the contract once an order has been placed but such text shall not be accessible to the customer. After placing an order, the customer receives a confirmation of receipt of such order. Such confirmation shall not constitute acceptance of the customer’s offer by WMF but merely shall serve to inform the customer that his/her order has been received. The contract shall become effective if and when WMF confirms the order by sending a written order confirmation within two weeks or executes the order including, but not limited to, by dispatching the respective products. Order confirmations which are issued with the help of an automated process and do not bear a signature or a name shall be deemed to be in writing. Order confirmations containing obvious errors, or typographical or calculation errors, shall not be binding on WMF.
3. Prices, Terms of Payment
3.1 WMF’s prices shall be deemed to be net prices ex factory, to exclude the applicable VAT, and to include packaging.
3.2 Invoices issued by WMF shall be payable within 21 days after receipt with no deductions whatsoever. If the customer is in default, subject to the assertion of higher damages caused by delayed payment WMF shall be entitled to charge interest at 9% above the applicable basic interest rate pursuant to § 247 of the BGB without a written reminder being required and to demand a lump sum payment of 40 euros pursuant to § 288 para. 5 of the BGB as compensation for internal or external collection measures.
3.3 WMF shall accept checks exclusively for payment.
3.4 WMF reserves the right to use payments made by the customer to settle the customer’s oldest amounts outstanding plus the interest in arrears and costs incurred therewith in this order: costs, interest, principal.
3.5 The customer’s right to offset shall be limited to cases in which the customer’s counterclaims have been determined in a court of law, are undisputed, or have been acknowledged by WMF.
3.6 If and when after a contract has been signed WMF gains knowledge of facts regarding the substantial deterioration of the customer’s financial situation which facts WMF at its discretion finds likely to compromise WMF’s claim to receive consideration, up until the date on which WMF provides the respective service WMF shall have the right to demand that the customer provide reasonable collateral within a reasonable amount of time or that the customer pay in advance or that payment be made upon the provision of the respective service. In addition, WMF shall have the right to rescind any previously granted deadline for payment. If and when the customer fails to meet WMF’s legitimate demand or does not meet such demand in a timely manner, WMF can rescind the contract or demand payment of damages in lieu of the provision of the respective service.
If and when the customer is in arrears with a partial payment WMF can demand that the remaining debts be paid immediately, and if the customer is in arrears as a result of the substantial deterioration of the customer’s financial situation, WMF can rescind the contract without setting another deadline or can demand payment of damages in lieu of the provision of the respective service. If the customer’s delayed payment is not due to his/her financial situation, WMF can rescind the contract after a reasonable new deadline has lapsed.
4.1 Unless agreed-upon otherwise, deadlines for delivery shall not be binding and partial deliveries shall be acceptable. If a fixed delivery date has been agreed upon and WMF fails to adhere to such date, the customer shall determine a reasonable grace period for such delivery. If delivery is not completed in full by the end of the grace period, the customer shall have the right to rescind the contract.
4.2 The deadline for delivery shall commence on the date the order confirmation is sent and shall be deemed to have been adhered to if and when the goods left the site/warehouse before the expiration of such deadline or, if shipment is not possible, a notice of readiness for shipment of the goods has been sent. If changes to the contract are agreed upon retroactively, a new delivery date or deadline for delivery shall be determined. Compliance with deadlines for delivery shall be subject to the proper and, in particular, timely receipt of the goods by WMF from its supplier unless WMF is responsible for the failure to receive the goods. In the event WMF does not receive the goods properly, WMF shall have the right to rescind the contract. If and when WMF exercises this right, WMF shall notify the customer without delay and shall reimburse the customer for any and all advance payments made.
4.3 Compliance with agreed-upon deadlines for deliveries shall be conditional on WMF’s timely receipt of any and all documents to be provided by the customer, required permits, and approvals including, but not limited to, plans, as well as on the customer’s complying with the agreed-upon terms of payment and other contractual obligations. If these conditions are not met in a timely manner, deadlines for delivery shall be extended in a reasonable manner; this provision shall not apply if WMF is responsible for the delay.
4.4 Unless special agreements have been made, the customer shall accept any and all call-off orders within six months after WMF’s notification of readiness for shipment. After such deadline expires, WMF shall have the right to demand acceptance by the customer.
4.5 If non-compliance with any deadline is the result of force majeure – regardless of whether the force majeure event occurs at any of WMF’s sites or at the premises of any of WMF’s suppliers – including, but not limited to, intervention by authorities, equipment breakdown, labor dispute, delayed delivery of essential raw materials and/or auxiliary supplies – or such non-compliance is the result of any similar events including, but not limited to, strike or lockout, the deadlines shall be extended in a reasonable manner. If any such event makes delivering the goods or providing the service impossible, WMF shall be released from its obligation to deliver and the customer shall not be entitled to claim damages. If the customer no longer is interested in the delivery or service because of such delay, after setting a reasonable grace period the customer can rescind the contract. If any of the aforementioned events occur at the customer’s premises, the customer’s obligation to accept the goods or services shall be subject to the same legal consequences, provided the customer notifies WMF in a timely manner in writing before the order has been processed. WMF and the customer shall notify each other without delay of the occurrence of any of the aforementioned events.
4.6 If the customer fails to accept the goods delivered, after the reasonable grace period has expired WMF can rescind the contract or demand damages in lieu of the provision of the respective service. In the latter case, WMF shall have the right to demand reimbursement of the damages actually incurred or payment of 20% of the purchase price without being required to furnish proof. It is hereby expressly agreed that the customer shall have the burden of proof that WMF incurred lesser damages or no damages at all.
4.7 In the event WMF accepts any used devices returned by the customer in exchange for partial payment, the customer shall abide by WMF’s instructions. No amounts paid for returned goods shall be subject to any discounts.
4.8 The customer shall receive a printed manual for every machine and shall comply with the instructions in such manual. The customer shall be responsible for connecting the water pipes to the machine and to the stopcock for the water supply and for connecting the electricity cables to the machine and to the power outlet with which an all-pole disconnection of the machine from the grid can be ensured, and for the flowing-off. Any costs incurred therewith shall be borne by the customer. WMF’s customer service engineers only are authorized to connect the machine to the respective ports. WMF shall not be liable for compliance with general and local regulations regarding installation work on site. WMF’s customer service engineers are not authorized to break through, drill through or otherwise alter any countertops or counters or the bases thereof. Such work also shall be the responsibility of the customer.
5. Passing of Risk
5.1 The risk of accidental loss and/or accidental deterioration, including in the case of prepaid freight, shall be passed on to the customer as follows:
- in the case of delivery excluding installation or assembly: as soon as the goods are entrusted to the person responsible for transport. Shipment shall be ex factory or ex warehouse at the customer’s risk. WMF shall not be liable for damage or loss during transport. The same applies to deliveries of parts of the shipment or if WMF agreed to provide other services, for example, assuming the transport costs or assembling products at the customer’s premises. Unless agreed-upon otherwise, WMF shall determine the method of shipment and packaging at its own discretion. WMF shall not assume any obligation to take out insurance coverage. However, at the customer’s written request the goods will be insured against damages including damages occurring during transport;
- in the case of delivery including installation or assembly: on the date the person responsible for transport delivers the goods to the customer;
- in the case the customer picks up the goods: upon notification of the readiness of the goods for pick-up.
5.2 If the customer delays acceptance, WMF can demand reimbursement for the damage and any additional expenses incurred, unless the customer is not responsible for the non-acceptance of the goods.
6. Claims for Defects
WMF shall assume liability for legitimate material defects as follows:
6.1 At WMF’s discretion, all products or services exhibiting material defects within the limitation period specified in 6.2 below shall be reworked or replaced at no additional cost if and when the reason for the material defect or defects was present at the time of the passing of risk.
6.2 Claims based on material defects shall lapse after twelve months and in the case of models used for demonstration, after six months. Such period shall commence upon delivery (§ 438 para. 2 of the BGB) or, in the case of work provided, upon acceptance (§ 643a para. 2 of the BGB). These periods shall not apply if and when the law stipulates later deadlines, for example, § 479 para. 1 of the BGB (entrepreneur’s right of recourse), § 438 para. 1 no. 2 of the BGB (buildings and objects for buildings) and § 634a of the BGB (construction defects). The one-year limitation period also shall apply to claims based in tort in connection with defective products or work. The limitation period shall commence upon the delivery of the products or, respectively, upon the acceptance of the work. The one-year limitation period shall not apply to WMF’s unlimited liability for damages resulting from infringement of a guarantee or from harm to life, body or health, for intent and gross negligence, and for product defects or if and when WMF assumed the procurement risk.
6.3 The customer shall notify WMF in writing of any and all material defects without delay, and in any case, no later than two weeks after delivery of the goods, and shall notify WMF of any and all hidden defects without delay, and in any case, no later than on the date such defects become known. WMF shall have ownership of all parts that have been replaced.
6.4 After notifying WMF of a material defect or defects, the customer shall have the right to withhold payment to the extent such retention is reasonable in view of the defect or defects. The customer can withhold payment only if the notification of the defect or defects is justified without doubt. If a notification of a defect proves to be unjustified, WMF shall have the right to demand to be reimbursed by the customer for expenses incurred.
6.5 Initially the customer shall grant WMF reasonable time to fulfill its contractual obligations as specified in 6.1 above. The customer shall provide WMF with the rejected product or samples thereof.
6.6 WMF shall not assume any warranty
- for parts subject to natural wear and tear including, but not limited to, gaskets;
- for defects for which WMF is not responsible and which result from weather or scale or from chemical, physical, electro-chemical or electric factors;
- if and when the customer has failed to use a water filter even though the local water conditions require the use of a water filter as stipulated in the manual and the defect or defects are the result of such failure;
- for defects resulting from non-compliance with instructions regarding the handling, maintenance and servicing of the machine (e.g., WMF’s instructions regarding operation and maintenance as detailed in the manual for the respective coffeemaker);
- for defects resulting from the improper or incorrect use or from failure to use original WMF spare parts, from incorrect assembly by the customer or third parties, or from incorrect or negligent treatment, and for the consequences of incorrect changes made or maintenance/repair work conducted by the customer or by third parties without WMF’s consent;
- in the case of the WMF 900 coffeemaker: for defects resulting from exceeding 7,000 brewings within the twelve-month warranty period after purchase of the WMF 900.
6.7 Machines only may be returned to WMF with WMF’s consent.
6.8 All other claims for damages shall be subject to the provisions in 9 below.
6.9 In particular, unless agreed-upon separately in writing in individual cases, WMF shall not assume any guarantee regarding the properties or durability of machines.
7. Option to Extend the Period of Limitations for Rights Arising from Defective Coffeemakers
7.1 If the customer purchased a coffeemaker and at the time of such purchase signed a full-maintenance contract regarding the regular maintenance of such coffeemaker, the warranty period shall be extended to 24 months after the passing of risk. Such extension shall apply only if and when the term of the full-maintenance contract is at least three years.
7.2 The customer’s claims based on warranty shall be subject to 6.1 and 6.3 through 6.8 above.
7.3 The aforementioned full-maintenance contract shall constitute a separate legal transaction.
7.4 The option to extend the warranty period shall not apply to WMF 900 coffeemakers.
8. Impossibility of Performance; Amendment of Contract
8.1 In the event delivery is impossible, the customer shall have the right to demand damages unless WMF is not responsible for such impossibility. The customer’s right to rescind the contract shall remain unaffected.
8.2 If unforeseeable events as specified in 4.5 above result in substantial changes to the economic relevance or to the contents of a delivery or have severe impact on WMF’s business, the contract shall be amended in a reasonable manner and in good faith. Where such amendment is not reasonable for economic reasons, WMF shall have the right to rescind the contract. If and when WMF intends to exercise such right, WMF shall notify the customer without delay after gaining knowledge of the extent of the impact of the event including if WMF and the customer initially had agreed to extend the deadline for delivery.
9. Claims for Damages
9.1. WMF’s liability for damages resulting from the infringement of a guarantee or from harm to life, body or health shall be unlimited. The same shall apply to intent and gross negligence or if and when WMF assumed the procurement risk. WMF shall be liable for minor negligence only in the event of a violation of material obligations which results from the nature of the contract and which is of special importance to fulfilling the purpose of the contract. WMF’s liability for such violation, for delay and for impossibility shall be limited to such damages the occurrence of which typically must be expected in connection with this type of contract. Statutory liability for product defects shall remain unaffected.
9.2 To the extent WMF’s liability is excluded or limited, such exclusion or limitation also shall apply to the personal liability of WMF’s staff members, employees, representatives, and agents.
10. Retention of Title
10.1 All delivered goods shall remain the property of WMF until any and all claims to which WMF may be entitled under either the current or any future business relationship with the customer have been met (hereinafter, “Products Subject to Retention of Title”). The customer undertakes to treat all Products Subject to Retention of Title with care for the duration of such retention of title. In particular, the customer shall take out reasonable fire, water and theft insurance coverage for the Products Subject to Retention of Title at replacement value at the customer’s own expense. If the value of all security interests to which WMF may be entitled exceeds the amount of all collateral by more than 10%, at the customer’s request WMF shall release a reasonable portion of the security interests. If and when the customer violates any of the customer’s obligations including, but not limited to, in the event of delayed payment, WMF shall have the right to rescind the contract after a reasonable grace period has lapsed, which reasonable grace period was determined by WMF. The customer shall return the purchased goods without delay. Subject to announcement in a timely manner, WMF shall have the right to use the Products Subject to Retention of Title to satisfy other receivables due from the customer.
10.2 If the customer is not the end consumer but is a reseller, the customer shall have the right to resell the Products Subject to Retention of Title in the ordinary course of business. However, the customer hereby assigns to WMF any and all receivables in the amount of the final invoice for WMF’s receivables which receivables accrued from the resale to the customer’s customers or third parties, regardless of whether the Products Subject to Retention of Title are resold after having been processed or without having been processed. WMF hereby accepts such assignment. The customer shall remain entitled to collect such receivables even after such assignment has come to pass. WMF’s right to collect its receivables shall remain unaffected. However, WMF undertakes not to collect such receivables unless the customer fails to meet his/her payment obligations as agreed upon. If this latter condition is not met, WMF can demand that the customer inform WMF of all receivables assigned and of the respective debtors, provide WMF with any and all information required to collect such receivables, provide the relevant documents, and notify the debtors (third parties) of the assignment. Moreover, the customer shall not pledge any of the Products Subject to Retention of Title or assign them by way of security or otherwise dispose of the Products Subject to Retention of Title such that WMF’s assets could be jeopardized.
10.3 Any and all processing of or alterations made to the Products Subject to Retention of Title shall be done on behalf of WMF as the manufacturer pursuant to § 950 of the BGB without binding WMF in any way.
10.4 If and when any products which are property of WMF are processed using other products, WMF shall acquire co-ownership of such new products pro rata depending on the market value of WMF’s products and the value of the other processed products at the time of such processing.
10.5 In the event of late payment, WMF shall have the right to demand that the delivered Products Subject to Retention of Title be surrendered without delay. In this case, receivables which are payable on demand will become payable immediately. Bills of exchange deposited shall be redeemed one-for-one for cash regardless of their due date.
11.1 If the contract is reversed for any legal reason whatsoever, regardless of any other claims WMF may have against the customer WMF shall have the right to demand payment of the following amounts for the use of the equipment and as compensation for depreciation:
- 25% of the purchase price plus VAT within the first six months;
- 30% of the purchase price plus VAT within the first twelve months;
- 40% of the purchase price plus VAT after one year;
- 50% of the purchase price plus VAT after two years;
- 60% of the purchase price plus VAT after three years.
11.2 It is hereby expressly agreed that the customer shall have the burden of proof that the amount of depreciation was lower or that depreciation did not occur at all.
12. Technical Data
12.1 Coffeemakers equipped with CoffeeConnect transmit operation and status related information (hereinafter, “Technical Data”) to WMF via a telemetric unit (CoffeeConnect INSIDE). This Technical Data includes, but is not limited to,
- meter values and statistics on brewings, beverage and maintenance meters, milk temperature (in the case of an add-on device or an add-on cooling unit), boiler temperature, etc.;
- commands and functions executed, including the time;
- the time the coffeemaker was turned on and the duration of time it remained on;
- data regarding radio transmission, including the signal strength, the provider selected, and the radio cell in which the coffeemaker is located;
- diagnostic and error messages for the coffeemaker;
- types and times of cleaning;
- software versions, times of installations of software updates, and log files of the software; and
- settings for beverages and for the coffeemaker.
12.3 The customer confirms and acknowledges that the Technical Data collected by WMF does not include any business secrets and is provided voluntarily by the customer and, thus, is obtained and processed lawfully by WMF.
12.4 WMF may use the Technical Data comprehensively and without appropriation at its own discretion and for any purpose whatsoever without limitations regarding time and space including, but not limited to, for purposes of support, remote monitoring, remote diagnostics, and accessing error codes. The Technical Data also may be used for research, development and business intelligence purposes.
13. Data Protection
13.1 To process the contract entered into with the customer, WMF must process the customer’s personal data including contact, order, and payment information. The basis for such processing is the contract entered into between WMF and the customer (Article 6 (1) b) of the EU Data Protection Regulation (hereinafter, “GDPR”)). To comply with commercial and tax laws, WMF stores the customer’s personal data in connection with the contract for up to ten years. Any other processing of personal data will be in compliance with the laws, other contracts entered into between the customer and WMF, or the customer’s consent exclusively.
13.2 The scope of processing of personal data is detailed in WMF’s general data protection information (Articles 12 through 14 of the GDPR) available at www.wmf-coffeemachines.com/de_de/datenschutzerklaerung.html.
14. No Assignment
The customer shall not assign any claims he/she may have against WMF resulting from contracts entered into between WMF and the customer unless it is with the express written consent of WMF.
15. Venue, Place of Performance, Applicable Law
15.1 Unless indicated otherwise in the order confirmation, the place of performance shall be the location of WMF’s registered office.
15.2 If the customer is a businessperson, the location of WMF’s registered office shall be the venue; however, WMF shall have the right to sue the customer at the customer’s place of residence. Arbitration clauses will be refuted.
15.3 The contractual relationships shall be subject to the laws of Germany under exclusion of the United Nations Conventions on Contracts for the International Sale of Goods (CISG).
15.4 Should any of the provisions in these Terms of Sale and Delivery be or become invalid or should there be a gap in these Terms of Sale and Delivery, the invalid provision shall be replaced or the gap shall be filled with a valid provision that comes as close as possible to the economic purpose intended.
Dated January 14, 2019