Terms & Conditions

General Terms and Conditions of WSM – Czech Republic s.r.o. for use with companies

  1. General, Scope
    1. Our General Terms and Conditions (GTC) apply to all contracts with our customers for deliveries and other services, irrespective of whether we manufacture the goods ourselves or purchase them from suppliers.
    2. The GTC shall also apply in their respective version as a framework agreement for future contracts with the same customer, even if they have not been expressly re-agreed; in this case we shall inform the customer immediately of any changes to our GTC.
    3. These GTC apply exclusively to the contractual relationship with our customers. 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 apply, if we agree without reservation to make a delivery in full knowledge of the customer’s GTCs.
    4. Legally relevant declarations and notifications that are provided to us by the customer after conclusion of contract (e.g., deadlines, notice of defects, declaration of withdrawal or reduction in volume) are not effective unless made in writing.
  1. Offer and establishment of a contract
    1. Our offers are subject to change and non-binding. We reserve the right to make reasonable technical changes to the products as well as changes in form and colour. This also applies if we have given the customer catalogues, 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 remain unaffected.
    2. In the case of individual custom-made products, the manufacturing drawing prepared by us and tested by the customer shall be solely authoritative. The customer must return them to us within five working days of receipt by himself with an approval note. If the return does not take place within five working days, this is considered as a production drawing. We will consider the subsequent requests for changes as far as possible; the additional costs are to be borne by the customer.
    3. Verbal agreements, promises, assurances and guarantees of our employees in connection with the conclusion of a contract only become binding with our written confirmation.
    4. The order of the goods by the customer is regarded as contractually binding. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt.
    5. Acceptance can either be declared in writing, for example by sending an order confirmation or by delivering the goods to the customer.
  1. Prices
    1. Unless otherwise stated in the order confirmation, the prices apply ex our warehouse in Březnice plus statutory value added tax. Work services are charged on a time and material basis according to our generally applicable rates.
    2. The minimum order value is 50 EUR (net order value). If the quantity falls below this limit, we will charge a minimum quantity surcharge of 25 EUR.
    3. Transport and packaging costs will be charged separately. Any customs duties, fees, taxes and other public charges shall also be borne by the customer. When calculating the service on a time and material basis, travel times and travel costs will be invoiced additionally.
    4. Delivery “free truck unloading point” requires that the relevant point can be reached on a good access route for trucks.
    5. The prices of our offer apply. We reserve the right to increase prices in accordance with the cost increases that have occurred due to, for example, collective agreements, increases in material prices or changes in legal regulations that may have an impact on our costs (for example, increases in the minimum wage, social security or health insurance contributions or statutory value-added tax).
  1. Terms of payment, invoicing of partial services
    1. Unless otherwise agreed, our invoices are payable within 10 days of invoicing and delivery or acceptance of the goods with 2% settlement discount or within 30 days without deduction. Initial deliveries to a new customer are made exclusively by cash on delivery or against prepayment.
    2. Upon expiry of the payment period, the customer shall be in default. The purchase price shall accrue interest at the applicable statutory default interest rate for the duration of the delay. The right to claim further damages is reserved.
    3. The customer is only entitled to set-off and retention rights if his claims are undisputed and due or legally binding. In the event of defects in the delivery, the rights of the customer shall remain unaffected, in particular in accordance with Section 7 paragraph 6 sentence 2 of these GTC.
    4. If it becomes apparent after conclusion of the contract that our claim to the agreed price is endangered by the customer’s inability to pay, for example by an application for insolvency proceedings, or if the customer’s conduct indicates that he is not fulfilling his obligations, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract; in the case of contracts for custom-made products, we can declare our withdrawal immediately.
    5. Partial services with corresponding invoicing are permissible, provided this is not unreasonable for the customer. If delivery is delayed for reasons for which the customer is responsible, we are entitled to raise a partial payment invoice amounting to 80% of the net order value.
  1. EU – Import sales tax
    1. If the customer has its registered office within the EU and outside the Czech Republic, it is obliged to comply with the European Union import sales tax regulations applicable in its country. They must inform us of their valid VAT identification number and any changes to it without being asked to do so and must confirm the transfer of the goods from the Czech Republic to the agreed place. Upon request, they are obliged to provide information about their capacity as a business (the taxpayer), the transport of the delivered goods and for the purposes of the statistical reporting obligation (Intrastat). If the customer is not registered for VAT, they are obliged to draw our attention to this prior to the conclusion of the contract. Furthermore, the customer is obliged to reimburse us for the expenditure and the costs which arise due to omitted and / or defective information on import sales tax.
    2. The customer is obliged to reimburse us for any value added tax (in the Czech Republic or in another EU country) subsequently assessed by the tax authorities as well as for all damages (in particular fines, penalties or interest on arrears, etc.) incurred as a result of the customer’s inadequate or missing information on the import value added tax.
  1. Retention of title
    1. We reserve the ownership of the delivered goods until the full payment of all our present and future claims arising from the contract concluded with the customer and an ongoing business relationship (secured claims).
    2. The goods subject to retention of title may not be pledged to third parties or assigned as collateral until the secured claims have been paid in full. The customer must notify us immediately in writing if and to the extent third parties have access to the goods belonging to us.
    3. In the event of breach of contract by the customer, in particular default in payment, we are entitled to take back the reserved goods or, if necessary, to demand assignment of the customer’s claims for restitution against third parties. Taking back or seizure of the reserved goods by us does not constitute a withdrawal from the contract if the customer is a business.
    4. The customer is authorised to resell and / or process the goods subject to retention of title in the normal course of business. In this case, the following provisions also apply:
      1. The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our products, whereby we shall be deemed manufacturer. If, in the case of processing, mixing or connection with goods of third parties, their ownership rights persist, we acquire co-ownership in the ratio of the invoice values ​​of the processed, mixed or connected goods. In all other cases, the same shall apply to the resulting product as to the goods delivered subject to retention of title.
      2. The customer shall assign to us as security the entirety of their payment claims against third parties arising from the resale of the goods. We herewith accept this assignment. The obligations of the customer mentioned in Paragraph 2 also apply with regard to the assigned claims.
      3. The customer shall remain entitled to collect these claims alongside us. We undertake not to collect the claim as long as the customer complies with our payment obligations, does not fall into arrears with payment, no application for the opening of insolvency proceedings has been filed and no other lack of obligations has occurred. If this is the case, however, we are entitled to demand that the customer notifies us of the assigned debts and their debtors, gives us all data necessary for a collection of such debts, hands over the attendant documents and notifies the debtors (third parties) of such assignment.
      4. If the achievable value of the securities exceeds our secured claims by more than 20%,we may, at our discretion, release the securities at the customer’s request.
  1. Guarantee
    1. The rights of the customer in the event of any defect in the quality or title (including any wrong deliveries and short deliveries as well as improper or defective assembly) shall be governed by the statutory provisions, unless otherwise stipulated below.
    2. The basis for any claim for defects shall be first and foremost the agreement regarding the condition/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 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 only insignificant deviation from the agreed quality with only insignificant impairment of the usability.
    3. If no quality has been agreed, the assessment of whether a defect is present 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. The customer’s claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations. If a defect is identified during the inspection or at a later point, we must be notified in writing immediately after its discovery. Irrespective of this obligation to examine and give notice of defects, the customer must immediately notify us in writing of obvious defects, including incorrect and short deliveries. If the customer neglects proper examination and / or timely indication of fault, our liability for the defects in question are excluded.
    5. The customer must first give us the opportunity for subsequent performance within a reasonable period of time before they can assert further claims or rights. In doing so, we shall have the choice – taking into account the interests of the customer – between rectification of defects and replacement delivery.
    6. We are entitled to make the owed supplementary performance dependent on the customer paying the due price. However, the customer may retain a reasonable part of the price in proportion to the defect.
    7. The customer shall allow us the necessary time and opportunity for due remedial performance and shall in particular hand over the goods concerned for inspection. In the case of a re-delivery, the customer shall return the defective goods as required by law. The supplementary performance does not include the removal of the defective item or the re-installation if we were originally not obliged to install.
    8. If there is in fact a defect, we shall bear the necessary costs of examination and subsequent performance, in particular the costs of transport, travel expenses, work and materials. However, if a request from the customer to remedy a defect proves to be unjustified, we can demand compensation from the customer for all expenses incurred.
    9. If the remedy has failed or if a reasonable deadline to be set by the customer for the remedy has expired without success or is dispensable according to the legal regulations, the customer can withdraw from the purchase contract or reduce the purchase price appropriately. There shall, however, be no right to withdraw if the defect is negligible.
    10. Any claims from the buyer for damages or reimbursement of expenses incurred shall only be asserted in accordance with Section 8 and are otherwise excluded.
  1. Limitation of liability
    1. Unless otherwise stipulated in these GTC, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the applicable statutory provisions.
    2. We will be liable for damages – irrespective of their legal grounds – in cases of intent or gross negligence.
      In cases of simple negligence, i.e. other than gross negligence, we are liable for

      1. damages resulting from injury to life, body or health;
      2. for damages resulting from the breach of a material contractual obligation, the fulfilment of which enables the proper execution of the contract in the first place and on whose observance the customer regularly trusts and can rely; however, in this case, our liability is limited to compensation for foreseeable, typically occurring damage.
      3. The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods or for claims of the customer in accordance with the mandatory provisions of the German Civil Code on product liability.
    3. In case of any breach of duty other than relating to defects, the customer shall only be entitled to withdraw from or terminate the contract if we are responsible for said breach.
    4. The above provisions also apply to the personal liability of our employees, workers, representatives and vicarious agents.
  1. Delivery, transfer of risk, inspection, failure to accept delivery, cancellation fees
    1. The delivery takes place from our warehouse in Březnice. The place of performance of all contractual services and consideration is there. At the customer’s request and expense, the goods will be shipped to another destination (Sales Shipment). Unless otherwise agreed, we are entitled to determine the mode of dispatch.
    2. The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest with their handover. When shipping, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay with delivery of the goods to the freight forwarder, the carrier or the person or institution otherwise intended to carry out the shipment, passes to the customer.
    3. If 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 features and acceptance criteria does not entitle the customer to refuse acceptance. This shall not affect our obligation to rectify errors. For the rest, the statutory provisions of work contract law shall apply as an agreed inspection of the goods.
    4. If delivery is delayed for reasons for which the customer is responsible, we are entitled to charge the customer storage costs of 0.5% of the net price of the goods for each commenced week of storage time, beginning one month after notification of readiness for delivery.
  1. Delivery turnaround and delays
    1. We will specify the expected delivery period in the order confirmation. This information is not binding.
    2. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible, we will inform the customer of this without delay and at the same time inform him of the expected new delivery deadline. If the delivery cannot be made within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any payments already made by the customer will be refunded immediately.
    3. The occurrence of our delay in delivery is determined by law. In any case, a written reminder by the customer is required. If we are in default of delivery, the customer can demand a contractual penalty. The contractual penalty shall not exceed 0.5% of the net price for each completed calendar week of delay, but no more than 3% in total of the net price of the goods delivered late. We reserve the right to prove that the customer has incurred no damage or only considerably less damage than the above contractual penalty.
    4. The customer’s rights pursuant to Section 11 of these GTC and our statutory rights, in particular in the event that the obligation to perform is excluded due to impossibility or unreasonableness of performance and/or supplementary performance or due to a material change in circumstances, shall remain unaffected.
  1. Limitation period
    1. Warranty claims of the customer against us become statute-barred one year after the transfer of risk. Insofar as acceptance has been agreed, the limitation period commences upon acceptance.
    2. The above limitation periods also apply to contractual and non-contractual claims for damages of the customer, which are based on a defect of the goods, unless, in individual cases, the application of the regular statutory limitation period would lead to a shorter limitation period. The limitation periods in accordance with the mandatory provisions of the German Civil Code on product liability remain unaffected in any case. For damage claims by the customer in accordance with Section 8, only the statutory limitation periods apply.
  1. Choice of law, place of jurisdiction, partial invalidity
    1. These GTC and all legal relations between us and the customer shall be governed by the law of the Czech Republic to the exclusion of 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 Art. 420 ff. of the German Civil 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 seek remedy from the courts holding general jurisdiction over the customer.
    3. If any clause of these terms and conditions or any other clause in any other agreement should be invalid, the validity of all other clauses or agreements remains unaffected.

 

Březnice, 01 August 2017

Information on the conciliation procedure:

Notice according to Art. 14 Verbraucherschutzgesetz (Consumer Protection Act):

If the customer is a consumer under Art. 419 of the German Civil Code, they have the right to out-of-court arbitration of the consumer dispute. The competent body for out-of-court arbitration of consumer disputes is the Czech Commercial Inspectorate (Česká obchodní inspekce) at www.coi.cz.