The present General Terms and Conditions govern all contracts for all deliveries and other services, including future contracts, concluded by Wiros Wilfried Rosbach GmbH with registered traders, legal entities under German public law or special funds as defined under German public law (hereinafter collectively referred to as the Customer). Our General Terms and Conditions shall further apply in circumstances where we act unconditionally and in the full knowledge of conflicting terms and conditions or terms or conditions of the Customer which are divergent from the present General Terms and Conditions in providing a service to a Customer.
All agreements reached between the Customer and ourselves are conclusively determined in the respective contracts and in the present General Terms and Conditions. Side agreements and amendments do not enter into force until confirmed by us in written form (e.g. by letter, fax or e-mail).
Our offers are without engagement insofar as nothing to the contrary has been agreed.
If an order placed by the Customer constitutes an offer within the meaning of § 145 of German Civil Code (BGB), we are entitled to accept such an offer by sending confirmation of order or by executing the contractual service within the same deadline.
All information such as drawings, diagrams, measurements, weights or other performance data is approximate only and is non-binding on our part. The same applies in respect of information provided on our website.
We reserve ownership and copyright in diagrams, drawings, calculations and other documentation, including documentation in electronic form. The same applies in respect of written documentation designated as “confidential”. The customer requires our express permission in writing prior to transferring such documentation to third parties.
Our prices are exclusive of transport costs and subject to Value Added Tax at the respective statutory rate insofar as nothing to the contrary has been agreed. Cost of packaging is included in the prices.
The Customer is liable for taxes, fees and levies incurred with regard to performance outside the Federal Republic of Germany and is required to reimburse us for such taxes, fees and levies if applicable.
In the case of deliveries inside the European Union, the Customer is required to demonstrate evidence of exemption from Value Added Tax by providing us with a VAT number in a timely manner before the contractually agreed date of delivery. In the event of failure to provide such notification in a timely manner and in full, we reserve the right to charge Value Added Tax at the respective statutory rate.
In the case of deliveries outside the European Union, we are entitled to make a subsequent charge for Value Added Tax if the Customer fails to provide us with an export certificate within one month of the respective dispatch.
Insofar as nothing to the contrary is stated on the confirmation of order or invoice, the purchase price falls due immediately and is payable in full to one of our accounts within 10 calendar days of receipt of invoice or of an equivalent demand for payment.
The statutory regulations apply regarding the consequences of default of payment. We retain the right to demonstrate that a higher degree of damage has been incurred.
The Customer only has the right to set off claims or exercise rights of retention in circumstances where the customer's counterclaims have been established in law, are not disputed or have been recognised by us.
Information provided regarding delivery times is approximate. Binding delivery dates or deadlines require confirmation in written form.
A delivery time stated by us does not commence until all technical issues have been clarified.
Compliance with our duty to provide delivery requires the timely and proper fulfilment of obligations on the part of the Customer. This particularly includes procurement by the Customer and at the Customer’s expense of the licenses and/or import and export documentation required for the Customer’s use of the products. We reserve the right of defence of non-performance.
We are not responsible for delays in delivery and performance caused by force majeure or strikes, even in circumstances where binding deadlines and dates have been agreed. Such events entitle us to postpone delivery or performance by the period of hindrance plus an appropriate lead time or to withdraw from the contract in whole or in part because of the contractual element not fulfilled. If withholding of performance is no longer reasonable for the Customer, the Customer may, having set an appropriate subsequent deadline, withdraw from the contract in respect of the contractual element not fulfilled.
In the event that the Customer is in default of acceptance or in culpable breach of other duties to cooperate, we are entitled to require compensation for damages suffered as well as in respect of any additional expenses which may have been incurred. This is without prejudice to the right to assert further rights or claims.
Insofar as the conditions stated in (3) above apply, the risk of accidental destruction of or accidental impairment to the goods is transferred to the Customer as soon as the Customer is in default of acceptance or in default of payment.
We will be liable in accordance with the statutory provisions insofar as the underlying purchase agreement is a transaction to be performed at a fixed point in time within the meaning of § 286 Paragraph 2 Clause 4 German Civil Code (BGB) or pursuant to § 376 German Commercial Code (HGB). We will also be liable pursuant to the statutory provisions insofar as the Customer is entitled to assert a claim of discontinuance of interest in further fulfilment of the contract as a result of a default in delivery for which we are responsible.
We will further be liable in accordance with the statutory provisions insofar as default of delivery is the result of intent or grossly negligent breach of contract on our part. Culpable behaviour by our representatives or vicarious agents is attributable to us. Insofar as default of delivery is the result of intent or grossly negligent breach of contract on our part, our liability for compensation is limited to foreseeable damages which typically occur.
We will be liable in accordance with the statutory provisions insofar as default of delivery for which we are responsible is the result of culpable breach of material contractual obligations. Notwithstanding this, in such a case liability for compensation is limited to foreseeable damages which typically occur. A breach of material contractual obligations occurs if the breach of obligation relates to a duty which the customer has expected to be fulfilled or may ordinarily rely upon to be fulfilled.
We are entitled to make partial deliveries and render partial performance at any time insofar as this is reasonable for the Customer.
Place of fulfilment is the location of our Registered Office.
Transport takes place without insurance and “ex works” insofar as nothing to the contrary is agreed.
If we act at the request of the Customer in dispatching the object of purchase to a place other than the place of fulfilment, risk is transferred to the Customer – insofar as nothing to the contrary has been agreed – as soon as goods are handed over to the forwarding agent, carrier or other person or institute determined for the execution of dispatch.
We will arrange for transport insurance should the Customer so wish. Any costs incurred in this regard are borne by the Customer.
We do not reimburse any costs for return transport of packaging.
Any claims regarding defects asserted by the Customer are subject to proper fulfilment of obligations incumbent on the Customer to examine goods and provide notification of defects pursuant to § 377 German Commercial Code (HGB).
In the event of defective goods, we are entitled to choose either to provide subsequent performance in the form of remedy of defect or to deliver a new product free from defects.
In the event that subsequent performance fails, the Customer may choose either to withdraw from the contract or to reduce the purchase price.
The limitation period for claims for defects is 12 months commencing with transfer of risk.
The restrictions regarding liability and limitation of claims set out in Section 6 Clauses 1-4 do not apply to claims for compensation and reimbursement which the Customer is able to assert pursuant to the statutory provisions because of defects within the meaning of Section 7) below.
This is without prejudice to the statutory limitation periods for recourse claims pursuant to § 478 German Civil Code (BGB). The same applies in the case of intentional breach of obligation and in the event of malicious failure to disclose a defect.
We are liable to the Customer for all contractual, quasi-contractual and tortuous claims for compensation and reimbursement as follows.
We are liable to an unlimited extent regardless of the legal basis for such liability:
in the case of intent or gross negligence;
in the case of intentional or grossly negligent damage to life, limb or health;
in the case of a guarantee commitment insofar as such a commitment is not governed by other provisions;
in the case of statutory liability such as pursuant to the German Product Liability Act.
If we act negligently in breaching a material contractual obligation, liability is limited to foreseeable damage typical of the contract insofar as we are not liable to an unlimited extent pursuant to 7.1 above. A breach of material contractual obligations occurs if the breach of obligation relates to a duty which the customer has expected to be fulfilled or may ordinarily rely upon to be fulfilled.
Liability is otherwise excluded.
The above liability provisions also apply with respect to liability for our vicarious agents and legal representatives.
To the extent that we have direct claims against the insurer of the Customer in our capacity as a co-policyholder, the Customer agrees with immediate effect that we may assert such claims.
We retain ownership in the object of purchase until such time as all payments arising from the delivery agreement have been received. In the event of conduct in a manner contrary to the contract by the Customer, in particular in the case of default of payment, we are entitled to take back the object of purchase. Such a taking back of the object of purchase on our part constitutes withdrawal from the contract. We are entitled to make disposal of an object of purchase thus taken back. The proceeds of any such disposal will, minus any reasonable costs of disposal, be credited towards the remaining liabilities of the customer.
The Customer is required to treat goods subject to retention of title with due care and is particularly required to bear the costs of sufficiently insuring such goods for their full replacement value against fire, water damage and theft. Insofar as maintenance and inspection works are necessary, the Customer is required to bear the costs of conducting such maintenance and inspection works in a timely manner.
The Customer must notify us in writing without delay in the event of seizures or other interventions by third parties in order to enable us to bring an action pursuant to § 771 German Civil Code Procedure (ZPO). Insofar as such a third party is not in a position to compensate us for costs incurred in bringing court or out-of-court action pursuant to § 771 German Civil Code Procedure (ZPO), the Customer will be liable for any loss we may incur.
The Customer is entitled to sell goods subject to retention of title during the normal course of business. Notwithstanding this, the Customer assigns to us with immediate effect and to the full amount of the final invoice amount agreed (including VAT) any claims arising for the Customer from buyers or third parties as a result of onward sale. Such an assignment takes place irrespective of whether goods have been further processed prior to resale. The Customer remains entitled to collect claims even after such an assignment has taken place. This is without prejudice to our own entitlement to collect such a claim ourselves. Notwithstanding this, we commit not to collect such a claim insofar as the Customer meets payment obligations from the proceeds received, insofar as the Customer is not in default of payment and particularly insofar as no application has been made for the instigation of conciliation or insolvency proceedings or cessation of payment has not taken place. If any of the above such be the case, we are entitled to require the Customer to disclose claims ceded and the relevant debtors, to provide all necessary information for the collection of claims, to release the required documentation and to notify the debtors (third party) of the assignment.
Any processing or transformation of goods subject to retention of title takes place on our behalf at all times. Insofar as goods subject to retention of title are processed together with other objects not belonging to us, we will acquire co-ownership in the value of the new item (final invoice amount including Value Added Tax) in the ratio of the objective value of our goods compared to other objects processed at the time such processing took place. The same otherwise applies to the new item created by such processing as to goods subject to retention of title conditionally delivered.
Insofar as goods subject to retention of title are inseparably mixed together with other objects not belonging to us, we will acquire co-ownership in the value of the new item (final invoice amount including Value Added Tax) in the ratio of the objective value of our goods compared to other objects mixed at the time such mixing took place. Insofar as mixing takes place in such a way so that the item of the Customer is to be viewed as the main item, it is agreed that the Customer will transfer ownership to us proportionately. The Customer will keep the sole ownership or co-ownership thus acquired in safe custody on our behalf.
For the purpose of securing our claims against the Customer, the Customer assigns to us any claims which the Customer may acquire against a third party by the combination of goods subject to retention of title with real estate.
We commit to release collateral due to us at the request of the customer to the extent that the realisable value of such collateral exceeds the claims to be secured by more than 10 percent. We are entitled to select collateral to be released.
All legal relations between the parties are governed by the law of the Federal Republic of Germany. The Uniform Law on the International Sale of Moveable Goods is excluded.
The contractual language is German and/or English.
Place of jurisdiction is Krefeld, the location of our Registered Office. Notwithstanding this, we are entitled to take legal action against the Customer at the place of jurisdiction of the Customer.
The location of our Registered Office is also place of performance and fulfilment insofar as nothing to the contrary is stipulated on the confirmation of order.