General terms and conditions
General Terms and Conditions of WSM - Walter Solbach Metallbau GmbH for use towards entrepreneurs
§ 1 General, scope of application
(1) Our General Terms and Conditions (GTC) shall apply to all contracts with our customers for deliveries and other services, regardless of whether we manufacture the goods ourselves or purchase them from suppliers.
(2) The GTC in their respective version shall also apply as a framework agreement for future contracts with the same customer, even if they have not been expressly agreed again; we shall inform the customer immediately of any changes to our GTC in this case.
(3) The contractual relationship with our customer shall be governed exclusively by these GTC. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we expressly agree to their validity. This requirement of consent shall also apply if we carry out the delivery to the customer without reservation in knowledge of the customer's GTC.
(4) Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
§ 2 Offer and conclusion of contract
(1) Our offers are subject to change and non-binding. We reserve the right to make technical changes to the products as well as changes in shape and color within the bounds of what is reasonable. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form. Our existing property rights and copyrights thereto shall remain unaffected.
(2) In the case of individual custom-made products, the production drawing prepared by us and checked by the customer shall be solely authoritative. The customer shall return them to us with a note of approval within five working days of receipt by him. If the return is not made within five working days, it shall be deemed to be a production drawing. Subsequent change requests will be taken into account as far as possible; the customer shall bear the additional costs associated with this.
(3) Verbal agreements, promises, assurances and guarantees made by our employees in connection with the conclusion of a contract shall only become binding upon our written confirmation.
(4) The order of the goods by the Customer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.
(5) Acceptance may be declared either in writing, for example by sending an order confirmation, or by delivery of the goods to the customer.
§ 3 Prices
(1) Unless otherwise stated in the order confirmation, prices are ex warehouse plus statutory value added tax. Work and services shall be invoiced on a time and material basis in accordance with our generally applicable rates.
(2) The minimum order value is 50 EUR (net order value). In case of a shortfall we charge a shortage surcharge in the amount of 25 EUR.
(3) Transport and packaging costs shall be charged separately. Any customs duties, fees, taxes and other public charges shall be borne by the customer. If the service is charged on a time and material basis, travel time and travel costs will be charged additionally.
(4) The delivery "free truck unloading point" presupposes that the place in question can be reached on an access road with good traffic conditions for trucks.
(5) The prices of our offer shall apply. We reserve the right to increase prices in accordance with cost increases that have occurred due to collective bargaining agreements or material price increases.
§ 4 Terms of payment, invoicing of partial services
(1) Unless otherwise agreed, our invoices are payable within 10 days from the date of invoice and delivery or acceptance of the goods with a 2% discount or within 30 days without deduction. First deliveries of a new customer are made exclusively by cash on delivery or against prepayment.
(2) Upon expiration of the payment deadline, the customer shall be in default. During the period of default, the price shall bear interest at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay.
(3) The customer shall only be entitled to rights of set-off and retention if its counterclaims are undisputed or have been finally determined by a court of law. In the event of defects in the delivery, the rights of the customer shall remain unaffected, in particular in accordance with § 7 paragraph 6 sentence 2 of these GTC.
(4) If, after conclusion of the contract, it becomes apparent that our claim to the agreed price is jeopardized by the customer's lack of ability to perform, for example by the filing of an application for the institution of insolvency proceedings, we shall be entitled in accordance with the statutory provisions to refuse performance and - if necessary after setting a deadline - to withdraw from the contract; in the case of contracts for custom-made products, we may declare withdrawal immediately.
(5) Partial services with corresponding invoicing are permissible insofar as this is not unreasonable for the customer. If the delivery is delayed for reasons for which the customer is responsible, we shall be entitled to invoice a progress bill in the amount of 80% of the net order value.
§ 5 EU - import turnover tax
(1) Insofar as the Customer is domiciled outside the Federal Republic of Germany, the Customer shall be obliged to comply with the import turnover tax regulations of the European Union. He has provided us with his VAT identification number and, if applicable. to notify them of any changes without being asked to do so. Upon request, he is obliged to provide information about his capacity as an entrepreneur, the use and transport of the delivered goods and for the purposes of statistical reporting requirements. Furthermore, the customer is obliged to compensate us for the effort and costs incurred due to omitted and / or inadequate information on import VAT.
(2) We shall not be liable for the consequences of inadequate or omitted information provided by the customer regarding import VAT, unless we are charged with intent or gross negligence.
§ 6 Retention of title
(1) Until full payment of all our current and future claims arising from the contract concluded with the customer and an ongoing business relationship (secured claims), we retain title to the delivered goods.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must notify us immediately in writing if and to the extent that third parties seize the goods belonging to us.
(3) In the event of conduct by the customer in breach of contract, in particular default in payment, we shall be entitled to take back the goods subject to retention of title or, if applicable, to demand assignment of the customer's claims for return against third parties. Our taking back or seizure of the goods subject to retention of title shall not constitute a withdrawal from the contract if the customer is an entrepreneur.
(4) The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
(a) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, pursuant to the preceding paragraph. We accept the assignment. The obligations of the customer specified in paragraph 2 shall also apply in respect of the assigned claims.
(c) The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the customer's request.
§ 7 Warranty
(1) The statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such (including those of the manufacturer), which were provided to the customer prior to his order or were included in the contract in the same way as these GTC, shall be deemed to be an agreement on the quality of the goods. We shall not be liable for the only insignificant deviation from the agreed quality in the case of only insignificant impairment of the usability.
(3) If no quality has been agreed, the assessment of whether a defect exists shall be based on the statutory provisions. We are not liable for public statements made by the manufacturer of supplied parts or other third parties.
(4) Claims for defects on the part of the customer presuppose that he has fulfilled his statutory obligations to inspect the goods and give notice of defects. If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. Irrespective of this obligation to inspect and give notice of defects, the customer shall immediately notify us in writing of any obvious defects, including incorrect and short deliveries. If the customer fails to properly inspect the goods and / or notify us of defects in a timely manner, our liability for the defect in question shall be excluded.
(5) The customer shall first give us the opportunity to remedy the defect within a reasonable period of time before asserting any further claims or rights. In this case, we have the choice - taking into account the interests of the customer - between repair and replacement.
(6) We are entitled to make the subsequent performance owed dependent on the customer paying the price due. The customer may, however, retain a reasonable part of the price in relation to the defect.
(7) The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install it.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, if a defect is actually present. However, if a request by the customer to remedy a defect turns out to be unjustified, we may demand reimbursement of the resulting costs from the customer.
(9) If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the price. However, in the case of an insignificant defect, there is no right of withdrawal.
(10) Claims of the customer for damages or reimbursement of futile expenses exist only in accordance with § 8 and are otherwise excluded.
§ 8 Limitation of liability
(1) Unless otherwise stated in these GTC, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the applicable statutory provisions.
(2) We shall only be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence.
In the event of simple negligence, we shall be liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer regularly relies and may rely; in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods or for claims of the customer under the Product Liability Act.
(4) The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty.
(5) The above provisions shall also apply to the personal liability of our employees, representatives and vicarious agents.
§ 9 Delivery, Transfer of Risk, Acceptance
(1) Delivery shall be ex warehouse. This is the place of performance of all contractual services and consideration. At the request and expense of the customer, the goods will be shipped to another destination (mail order purchase). Unless otherwise agreed, we are entitled to determine the mode of shipment.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In case of shipment, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
(3) Insofar as acceptance has been agreed, this shall be decisive for the time of transfer of risk. Commissioning or use in accordance with the purpose of the contract shall be deemed acceptance. An insignificant deviation from the agreed performance characteristics and acceptance criteria shall not entitle the customer to refuse acceptance. Our obligation to correct errors remains unaffected. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to an agreed acceptance.
(4) If delivery is delayed for reasons for which the customer is responsible, we shall be entitled to charge the customer storage costs of 0.5% of the net price of the goods for each commenced week of storage time, commencing one month after notification of readiness for delivery.
§ 10 Delivery period and delay in delivery
(1) We shall state the expected delivery period in the order confirmation. This information is not binding.
(2) If we are unable to meet bindingly agreed delivery deadlines for reasons for which we are not responsible, we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, a written reminder by the customer is required. If we are in default of delivery, the customer may demand compensation for the damage caused by the default. It shall amount to a maximum of 0.5% of the net price for each completed calendar week of the delay, but in total to a maximum of 3% of the net price of the goods delivered late. We reserve the right to prove that the customer has not suffered any damage or that the damage is significantly less than the aforementioned lump sum.
(4) The rights of the customer pursuant to § 11 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform due to impossibility or unreasonableness of performance and / or subsequent performance, shall remain unaffected.
§ 11 Limitation
(1) The customer's warranty claims against us shall become statute-barred one year after the passing of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The above limitation periods shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in the individual case. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the customer's claims for damages pursuant to § 8.
§ 12 Choice of Law, Place of Jurisdiction, Partial Invalidity
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relationships between us and the customer, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of our registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, we are also entitled to bring an action at the customer's general place of jurisdiction.
(3) Should any provision in these Terms and Conditions or any provision of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
Waldbröl, February 01, 2017
Information on the conciliation procedure
(1) Notice pursuant to § 36 Consumer Dispute Settlement Act:
WSM - Walter Solbach Metallbau GmbH does not participate in the arbitration board procedure according to the Alternative Dispute Resolution Act.
(2) Our customers can obtain additional information on the arbitration procedure from:
General consumer arbitration board at the Zentrum für Schlichtung e. V., Strassburger Str. 8, 77694 Kehl am Rhein,
Fax: 07851-7957941, e-mail: [email protected].
(3) We also refer to the EU online dispute resolution platform: https://webgate.ec.europa.eu/odr/main/?event=main.home.show