The general terms and conditions listed below shall apply to all our deliveries and services unless other terms and conditions have been agreed in writing. Deviations from the conditions stated here must be in writing in order to be legally effective. Any deviation from this agreement must also be made in writing.
The scope of the delivery obligation shall be determined by the customer's order. In the event that our order confirmation deviates from the customer's order, our order confirmation shall be deemed agreed if the customer does not object in writing within three days of receipt of our order confirmation. Changes to the order by the customer shall only be effective if confirmed by us in writing. All our offers are non-binding and subject to confirmation. Details in the performance descriptions (weight and quality, operating costs etc. are approximate details). Details in catalogues, brochures, etc. are non-binding and only become part of the contract insofar as they are explicitly referred to in the order confirmation.
All agreed prices are net prices ex works. All prices do not include packaging, shipping and insurance. If we are commissioned with packaging, dispatch and insurance, these costs will be charged to the customer. If the goods are shipped to third countries, all customs duties, taxes and other public charges shall be borne by the customer.
The confirmed delivery time is non-binding, unless a fixed date has been agreed. Claims for damages due to exceeding the delivery period are excluded. We reserve the right to withdraw from the contract, should circumstances in the economic circumstances of the customer become known to us after order confirmation and the customer does not secure our claim.
The fulfilment and transfer of risk always occurs with the departure from our supplying plant. The inspection of the goods must therefore take place in our works. In the event of default in acceptance on the part of the customer, the risk shall pass to the customer upon our declaration of readiness to deliver. Unless partial performances are explicitly excluded in writing, they are permissible at any time. The mode of dispatch shall be determined by us unless otherwise agreed in writing. Operational disruptions, cases of force majeure, regardless of whether they occur at our premises or at those of our suppliers, release us from the obligation to deliver or from compliance with the agreed delivery deadlines. We are entitled to make subsequent deliveries after the fault has been rectified. All deliveries shall be made carriage forward from the supplier's place of business for account and risk as well as at the customer's expense. The ordered goods/services shall only be insured upon explicit written order and at the expense of the customer.
The warranty period is in any case 6 months, contrary to the provision of § 933 (1) AGBG. The customer shall be obliged to immediately inspect and give notice of defects. A complaint shall be deemed to have been made in good time if it is made to us in writing within 8 days of handover or occurrence of the defect. The customer is not
entitled to complain about the entire delivery if only parts of the delivery show defects. We shall be entitled to subsequently deliver or replace the parts complained of. The warranty expires if the object of purchase has been modified by a third party or by the installation of parts of a third-party origin. For repair work and used purchase objects, any guarantee is excluded. In the event of resale within the warranty period, the warranty expires. The customer is not entitled to assign claims from the title of warranty. In the event of gross negligence, liability shall be limited to the amount of the contract value, but not more than the sum covered by the business liability insurance (except in the case of personal injury). We shall not be liable for indirect damage, loss of profit, loss of interest, failure to make savings, consequential and pecuniary damage and damage arising from third-party claims or for damage caused by unsuitable or improper use, natural wear and tear, incorrect or negligent handling or storage.
In principle, a warranty or guarantee claim can only be made after a fully completed complaint form has been submitted to Wimmer. The following basic principles have been changed for warranty work by dealers or customers: In the event that justified warranty claims have been asserted, the customer shall send the goods complained of to us at their own expense and risk. Once the defects have been identified, the goods will be returned to the customer at the cost and risk of the customer. No costs whatsoever can be assumed for rectification of defects by dealers or customers. Transport costs will generally only be reimbursed for incorrectly delivered components if a written complaint is made within 3 days. The following principles apply to the handover of Wimmer attachments:
- All attachments must be handed over by trained personnel and adjusted according to our specifications.
- The provided adjustment protocols must be completed and sent to Wimmer within 1 week after handover of the equipment.
If these services cannot be proven, there is no warranty or guarantee claim. The following basic principles shall apply to attachments and accessories of Wimmer which are carried out by the dealer or customer:
- Wimmer only guarantees the function of the components supplied. Due to the various designs of the hydraulic excavators, Wimmer does not provide any guarantee or warranty for the correct function of the finished body. The type or exact design of the superstructure must be adapted to the excavator design by the dealer or customer.
Replacement deliveries for spare parts which have been complained about will always be charged and only credited after return of the defective spare part and
acceptance of the complaint. The delivery must be accompanied by a delivery note with a copy of the complaint. Here, too, the rule applies
that we do not assume any transport costs. The return delivery of the defective parts must arrive at the
Thalgau factory within 30 days of receipt of the complaint, otherwise the complaint is invalid.
Unless otherwise agreed in writing, our invoices are due for payment upon invoicing. If payment by instalments has been agreed, the loss of a deadline shall also occur in the event of non-payment of only one instalment and the total amount outstanding shall become due for payment immediately. In the event of default in payment on the part of the customer, we are no longer obliged to continue to fulfil orders that have not yet been carried out. Payments can only be made to ourselves with effectiveness. Representatives are not entitled to collect payments. In the event of default in payment, we shall be entitled to charge interest on arrears in accordance with § 456 of the Austrian Commercial Code (we shall be at liberty to claim separately any damages in excess of this), as well as to claim dunning, collection and legal costs, insofar as they are necessary for appropriate legal prosecution. This shall include a lump sum of €40.00, irrespective of any further collection costs (as defined in § 1333 para. 2 ABGB). In the event of default in payment, payments shall first be set off against costs, then against interest and finally against the main item. In the case of several existing
debt obligations of the customer, payments shall first be offset against unsecured claims and then against the oldest debt obligations. The lodging of notices of defects does not entitle the customer to withhold payments. Offsetting is excluded. In the event of default in payment, we shall be entitled to rescind the contract after setting a grace period of 14 days and to claim the damage suffered and lost profit or a contractual penalty in the amount of 10% of the agreed price.
The goods shall remain our property until the purchase price has been paid in full or until all other claims arising from the business relationship have been settled. The customer is not entitled to resell or lease goods subject to retention of title. In the event that the delivered goods are intended for resale by the customer, the customer assigns their purchase price claim to their customer to us upon resale.
We are entitled to assert the assigned purchase price claim directly with the customer of the orderer, but are not obliged to do so. The customer is prohibited from pledging goods delivered under retention of title. The customer shall notify us immediately of any seizure of the goods. The customer shall bear the costs of any atttachement proceedings.
Austrian law shall apply exclusively. The place of performance shall be our works; the place of jurisdiction shall be the city of Salzburg.
The protection of personal data and the privacy of the persons concerned is of particular concern to us. We therefore process personal data exclusively on the basis of the legal provisions [Regulation (EU) 2016/679 of the European Parliament and of the Council dated 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and on the repeal of the Directive 95/46/EG (GDPR), Data Protection Act as amended on 25 May 2018, Telecommunications Act 2003]."
Both we and the customer are obliged to comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (GDPR) and any other statutory confidentiality obligations.
We process the personal data required for the purpose of fulfilling the contract. The detailed data protection information (data protection notice) pursuant to Art. 13 ff GDPR can be found on our homepage at: www.wimmer.info/datenschutz.
The customer is obliged to take all necessary data protection measures, in particular those in the sense of the GDPR (e.g. obtaining the declaration of consent of the persons concerned), so that we may process the personal data for the purpose of the contractual relationship.
The customer consents to receive messages within the meaning of Section 107 of the Telecommunications Act (TKG) from the entrepreneur or from companies commissioned by the entrepreneur for this purpose for advertising purposes. This consent may be revoked by the customer at any time at [email protected].