General Terms and Conditions of WSM – Walter Solbach Metallbau GmbH for Use in Transactions with Business Entities
§ 1 General Provisions, Scope of Application
(1) Our General Terms and Conditions (GTC) apply to all contractual agreements with our customers for deliveries and other services, irrespective of whether we produce the goods ourselves or purchase them from suppliers.
(2) These GTC, as amended from time to time, shall apply as master agreements also to future contracts with the same customer, even if not expressly agreed to again; in this case, we shall inform the customer about any amendments and alterations made to our GTC without delay.
(3) The contractual relationship with our customer shall exclusively be subject to these GTC. Any of the customer’s General Terms and Conditions which differ from, contravene or supplement these GTC shall only be incorporated as subject matter into the contractual agreement if and to the extent that we expressly consent to their validity. This requirement for consent shall also apply in the event that, in spite of our knowledge of the customer’s GTC, we perform delivery to the customer without reservation.
(4) Any declarations and notices relevant in law to be made by the customer to us following the conclusion of the agreement (e.g. setting of deadlines, notices of defect, declarations of cancellation or reduction) must be made in writing in order to be effective.
§ 2 Quotation and Conclusion of Agreement
(1) Our quotations and offers are non-obligatory and submitted subject to confirmation. We reserve the right to make technical modifications to the products as well as alterations in terms of form and colour to a reasonable extent. This shall also apply in the event that we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards) other product descriptions or documents – including materials provided in electronic form. Our intellectual property and other proprietary rights concerning such items shall remain unaffected.
(2) For custom-made single items, the production drawing created by us and reviewed by the customer shall exclusively be decisive. The customer shall return the drawing to us within five working days following receipt of the drawing with a note of approval. In the event the drawing is not returned within five working days, the drawing shall be deemed to have been acknowledged as the production drawing for the product. We shall accommodate subsequent requests for alteration to the extent possible, with any related additional costs incurred to be borne by the customer.
(3) Any verbal agreements, promises, assurances and guarantees provided by our employees in conjunction with the conclusion of a contract shall only become binding if and when confirmed by us in writing.
(4) An order for goods placed by the customer shall be deemed a binding contractual offer. Unless otherwise provided for in the purchase order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.
(5) An acceptance may either be declared in writing, for instance by sending an order confirmation, or by delivering the goods to the customer.
§ 3 Prices
(1) Unless otherwise provided for in the order confirmation, prices shall be deemed ex warehouse, plus legally applicable value added tax. Factory services shall be charged as incurred based on time and material consumption according to our generally valid rates.
(2) The minimum order value is EUR 50.00 (net order value). Orders below this value are subject to an extra charge for small quantities in the amount of EUR 25.00.
(3) Transport and packaging costs are subject to separate charge. Any customs duty, fees, taxes and other public charges shall be borne by the customer. If services are charged for based on time and materials, transit times and travel costs shall be charged separately.
(4) Delivery ‘free to truck unloading point’ presupposes that the respective location is easily accessible by trucks on proper access roads.
(5) The prices stated in our quotation shall apply. We reserve the right to raise these prices in accordance with any cost increases which may have been incurred by us as a result of collective bargaining agreements or material price increases.
§ 4 Terms of Payment, Billing of Partial Performance
(1) Unless otherwise agreed to, our invoices shall be payable within 10 days of billing and delivery or acceptance of the goods subject to a 2 % discount, or within 30 days in full. Initial deliveries to a new customer shall exclusively be made against cash on delivery or advance payment.
(2) The customer shall be deemed in default upon expiry of the payment term. During the default period interest for default at the respective legally applicable rate shall be chargeable on the price. We reserve the right to assert further claims for loss or damage caused by delay.
(3) The customer shall only be entitled to rights of set-off or retention if the customer’s counter-claims are undisputed or have been confirmed by a final court decision. In the event of defective/deficient deliveries, the customer’s rights, including but not limited to, §7, paragraph 6, sentence 2 of these GTC shall remain unaffected.
(4) If, following the conclusion of the contractual agreement, circumstances indicate that our claim to the agreed price may be jeopardised due to the customer’s lack of capacity to perform, for instance due to the filing of a petition for initiation of insolvency proceedings, we shall, according to the legal provisions governing the right to withhold performance, and – after setting a deadline, if applicable – be entitled to rescind the contract; in the event of contractual agreements for custom-made single items we shall be entitled to immediately declare rescission.
(5) Partial performance with corresponding billing shall be permissible to the extent that this is not unreasonable for the customer.
§ 5 EU – Import Turnover Tax
(1) To the extent that the customer is domiciled outside Germany, the customer shall be obligated to comply with the regulations of the European Union for import turnover tax. The customer shall provide us with its value added tax identification number (VATIN) and, if applicable, any change in VATIN on the customer’s own accord. Upon request, the customer shall be obligated to provide information about its capacity as a business operator, about the utilisation and transport of the delivered goods, and information which may be required for compliance with statistical reporting duties. Furthermore, the customer shall be obligated to compensate us for any expenses and costs incurred by us due to the customer’s omission and / or deficient provision of information concerning import turnover tax.
(2) We shall not be liable for any consequences of the customer’s deficient provision of or failure to provide information concerning import turnover tax, unless malice or gross negligence was held against us.
§ 6 Retention of Title
(1) We shall retain title to the delivered goods until payment in full has been received for any and all of our current and future receivables arising out of the contractual agreement with the customer and an ongoing business relationship (secured receivables).
(2) Prior to the full payment of secured receivables, any goods subject to retention of title must not be pledged to or assigned as collateral to any third party. The customer shall immediately inform us in writing if, when and to what extent third parties may be seizing goods which are our property.
(3) In the event of a breach of contract by the customer, including but not limited to, default in payment, we shall be entitled to recover the goods which are subject to retention of title or, if applicable, to demand assignment of the customer’s claim for surrender against third parties. The recovery or seizure of the goods which are subject to retention of title by us shall not constitute a rescission of contract, provided the customer is a business operator.
(4) The customer shall be entitled to resell and/or process the goods which are subject to retention of title in the normal course of business. In this case, the following provisions shall apply:
(a) The retention of title shall extend to any product resulting from the processing of, or the mixing or combining with, our goods at the resulting product’s full value, with WSM to be deemed the manufacturer. In the event that in the course of processing, mixing or combining of our goods with third-party goods the title to such goods is retained by the respective third party, we shall acquire co-ownership in proportion to the accounting value of the processed, mixed or combined goods. Apart from that, the resulting product shall be subject to the same provisions as the goods delivered subject to retention of title.
(b) The customer agrees in advance to assign any and all claims and receivables s arising out of the resale of the goods or the resulting product(s) against third parties in full or in the amount equating to the proportion of our possible co-ownership as collateral according to the provisions in 6 (a) above. We accept this assignment. The obligations set out in §2 above shall also apply with respect to the assigned claims or receivables.
(c) Alongside WSM, the customer shall retain the right to collect the receivables. We undertake to refrain from collecting the receivables as long as the customer fulfils its payment obligations towards us, is not in default, no petition for initiation of insolvency proceedings has been filed and no other deficiency in its capacity to perform exists. However, should any of the aforementioned circumstances exist, we shall be entitled to demand that the customer disclose the assigned claims and receivables and their debtor(s) to us, provide us with any details required for collecting them, hand over the related documents to us, and inform the debtor(s) (third party or parties) of the assignment.
(d) In the event that the realisable value of the collateral exceeds our claims and receivables by more than 20% we shall, at the customer’s request, release collateral at our own discretion.
§ 7 Warranty
(1) The customer’s rights regarding significant defects and defects of title (including wrong and insufficient delivery as well as improper assembly or deficient assembly instructions) shall be subject to the relevant legal provisions, to the extent that no other provisions are set out below.
(2) Our liability for defects/deficiencies shall, above all, be based on the agreement made about the quality of the goods. The product descriptions designated as such (including those of the manufacturer) which have either been provided to the customer in advance of the customer’s placement of the purchase order or have been incorporated in the contractual agreement in the same manner as these GTC shall be deemed the agreement about the quality of the goods. We shall not be liable for merely insignificant variations of the agreed quality of the goods in the event of a merely insignificant impairment of their serviceability.
(3) To the extent that no quality has been agreed, the assessment of whether or not a defect/deficiency exists shall be subject to the relevant legal provisions. We shall not be liable for any public statements made by the suppliers of purchased parts or any other third parties.
(4) Claims for defects/deficiencies by the customer presuppose that the customer has complied with its legal obligations of inspection and notification. If, during the inspection or at a later point in time, a defect is detected, the customer shall notify us without delay. Irrespective of this obligation of inspection and notification, the customer shall immediately provide us with written notice of obvious defects, including wrong or insufficient delivery. Should the customer fail to perform a proper inspection and/or fail to provide a notice of defect in time our liability for the respective defect/deficiency shall be excluded.
(5) The customer shall initially afford us the opportunity for cure/supplementary performance within a reasonable period of time before being entitled to assert any further claims or rights. We shall have the choice – taking the customer’s interests into account – between performing rework/subsequent improvement and substitute delivery.
(6) We shall be entitled to make the cure/supplementary performance owed by us dependent upon the customer paying the due price. However, the customer may retain a part of the price that is reasonable in proportion to the defect/deficiency.
(7) The customer shall grant us the time and opportunity required for us to carry out the cure/supplementary performance we owe, including but not limited to, the customer handing out the rejected goods to us for inspection/testing purposes. In the event of a substitute delivery, the customer shall return the defective item(s) to us according to the relevant legal provisions. Cure/supplementary performance shall include neither the disassembly nor the reinstallation of the defective item(s) unless we were originally obligated to perform the installation.
(8) The expenses incurred for the purposes of inspection/testing and cure/supplementary performance, including but not limited to, transport, transit, labour and material costs, shall be borne by us in the event that a defect in fact exists. However, should a demand for correction of a defect made by the customer prove unwarranted, we shall be entitled to require the customer to reimburse us for the related costs incurred.
(9) In the event that cure/subsequent performance has failed or the time for cure/subsequent performance to be set by the customer has lapsed without success, or may be dispensed with under relevant legal provisions, the customer shall be entitled to rescind the contract or reduce the price. However, a right to rescission shall not exist in the event of an insignificant defect/deficiency.
(10) The customer’s claims for loss or damage or for reimbursement of expenses incurred to no avail shall only exist as provided for in §8 below and, apart from that, excluded.
§ 8 Limitation of Liability
(1) To the extent that these GTC do not otherwise provide for, we shall be liable for breach of contractual and non-contractual obligations in accordance with applicable legal provisions.
(2) We shall be liable for loss or damage – regardless of the legal grounds – solely in the event of malice or gross negligence.
In the event of simple negligence we shall be liable
(a) for loss or damage arising from injury to life, limb and health,
(b) for loss or damage arising out of breach of a material contractual obligation the fulfilment of which would make performance of the agreement possible in the first place and adherence to which is and can normally be relied on by the customer; in this case, however, our liability shall be limited to compensation of the predictable and typically occurring loss or damage.
(3) The limitations of liability resulting from the provisions in (2) above shall not apply to the extent that we have maliciously concealed a defect or provided a guarantee for the quality of the goods, or to claims the customer may assert under the Product Liability Act.
(4) A breach of obligations which does not consist of a defect shall entitle the customer to rescind or terminate the contractual agreement solely in the event that we are responsible for the breach.
(5) The provisions above shall also apply to the personal liability of our employees, representatives and agents.
§ 9 Delivery, Passage of Risk, Acceptance
(1) Delivery shall be made ex warehouse. The warehouse shall be deemed the place of performance for any and all contractually agreed services and considerations. At the customer’s request and expense the goods shall be shipped to another destination (sale by dispatch). To the extent that no other agreements exist, we shall be entitled to determine the method of shipment.
(2) The risk of accidental loss and accidental deterioration of the goods shall, at the latest, pass to the customer at the time the goods are handed over. In the case of shipping, 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 carrier, freight forwarder, or any other person or entity commissioned to carry out the shipment.
(3) To the extent that an acceptance has been agreed, such acceptance shall be decisive for the point in time at which the risk passes. Commissioning of the goods or any other usage corresponding to the contractual purpose shall be deemed acceptance. An insignificant variation from the agreed performance features and acceptance criteria shall not entitle the customer to refuse acceptance. Our obligation to correct defects/deficiencies shall remain unaffected by this. Apart from that, an agreed acceptance shall, correspondingly, be subject to the provisions of the law governing contracts for work and services.
§ 10 Delivery Period and Default in Delivery
(1) We shall indicate the anticipated delivery period in our order confirmation. This information shall be non-binding.
(2) To the extent that we are unable to adhere to a binding agreement of delivery periods for reasons beyond our control, we shall inform the customer accordingly without delay and, at the same time, inform the customer of the anticipated new delivery period. If performance is not available within the new delivery period we shall be entitled to rescind the contractual agreement either fully or partly; any consideration already received from the customer shall be reimbursed by us without delay.
(3) The commencement of default in delivery shall be subject to the relevant legal provisions. In any event, a written reminder from the customer shall be required. In the event we are in default in delivery the customer shall be entitled to compensation for loss or damage incurred by the default. For every full calendar week of the default period compensation shall amount to a maximum of 0.5% of the net price, however, in total amounting to a maximum of 3% of the net price of the goods delivered late. We reserve the right to prove that the customer has incurred no loss or damage at all or loss of damage which is significantly lower than the aforementioned fixed rates.
(4) The customer’s rights arising out of § 11 of these GTC and our legal rights, including but not limited to, an exclusion of the obligation to perform due to the impracticality or unreasonableness of performance and/or cure/subsequent performance shall remain unaffected.
§ 11 Lapse of Time/Statute of Limitations
(1) Any warranty claims of the customer’s against us shall expire by lapse of time one year following the passing of the risk. To the extent that an acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The limitation periods above shall also apply to contractual and non-contractual claims for loss or damage by the customer which are based on a defect of the goods, unless the application of the regular legal limitation would lead to a shorter limitation. The limitation periods established by the Product Liability Act shall remain unaffected in any event. Apart from that, claims for loss or damage asserted by the customer according to §8 above shall exclusively be subject to the limitation periods provided for by law.
§ 12 Choice of Law and Jurisdiction, Partial Nullity
(1) These GTC and all legal relations between us and the customer shall be governed by the laws of the Federal Republic of Germany, excluding International Uniform Law, particularly the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) If the customer is a merchant as defined by the German Commercial Code, a legal entity under public law or a public separate estate our domicile shall exclusively be the place of jurisdiction for any and all disputes directly or indirectly arising out the contractual relationship. However, we shall also be entitled to take legal action at the customer’s general place of jurisdiction.
(3) In the event that any provision of these General Terms and Conditions or any provision in any other agreement be or become ineffective, this shall not affect the effectiveness of any other provisions or agreements.
Waldbröl, 1st February 2017
Information on Dispute Settlement (Arbitration) Proceedings
(1) Notice according to Section 36 Verbraucherstreitbeilegungsgesetz (Consumer Dispute Resolution Act):
WSM – Walter Solbach Metallbau GmbH does not take part in the arbitration board proceedings according to the law governing the alternative resolution of disputes.
(2) We would like to advise our customers that additional information on dispute settlement (arbitration) proceedings can be obtained from the following source:
Allgemeine Verbraucherschlichtungsstelle am Zentrum für Schlichtung e. V., Straßburger Str. 8, 77694 Kehl am Rhein,
Fax: +49 (0)7851-7957941, E-Mail: [email protected]
(3) Furthermore, we would like to refer to the Online Dispute Resolution Platform of the EU: https://webgate.ec.europa.eu/odr/main/?event=main.home.show