General Terms and Conditions of Business

Wilhelm Bäcker GmbH & CO KG 
Wilbär 
General Terms and Conditions of Delivery and Payment

These General Terms and Conditions of Delivery and Payment shall apply to all - including future - contracts with entrepreneurs, legal entities under public law and special funds under public law for deliveries and other services, including contracts for work and services, consultancy contracts, contract work and the delivery of fungible and non-fungible items. The customer's terms and conditions of purchase shall not apply under any circumstances.

Verbal agreements, collateral agreements, promises, guarantees and other assurances made by our employees shall only become binding upon our written confirmation.

Our offers are subject to change. Orders only become binding with our order confirmation.

The information and illustrations contained in brochures and catalogs are approximate values customary in the industry, unless we have expressly designated them as binding.

Unless otherwise agreed, our prices are ex works, excluding packaging, freight, postage, insurance and VAT. Unless otherwise agreed, our price list valid at the time of conclusion of the contract shall apply.

The minimum invoice value is 50.- Euro net value of goods. If the minimum invoice value is not reached, a processing fee of currently EUR 8 will be charged.

If the goods are delivered packaged, we shall invoice the packaging at cost price; within the framework of the statutory regulations, we shall take back packaging supplied by us if it is returned to us carriage paid by the customer within a reasonable period of time.

If public charges, wage, material or energy costs or other external costs included in the agreed price change later than two months after conclusion of the contract or if they are newly incurred, we shall be entitled to change the price accordingly.

Payments shall be made in accordance with the payment terms and discounts stated on the invoices from the invoice date, otherwise immediately net. Discounts shall always only apply to the invoice value excluding freight and require the full settlement of all due liabilities of the customer at the time of the discount. We must be able to dispose of the amount on the due date.

If the target is exceeded, we are entitled to charge interest on arrears at a rate of 8 percentage points above the respective prime rate of the ECB.

Bills of exchange shall only be accepted by agreement and on condition that they are discountable. Discount and collection charges shall be borne by the customer.

If, after conclusion of the contract, it becomes apparent that our claim to payment is jeopardized by the customer's inability to pay, or if the customer defaults on payment of a not inconsiderable amount, or if other circumstances arise which indicate a significant deterioration in the customer's ability to pay (e.g. significant downgrading of the customer's limit with our commercial credit insurance, so that there is no longer cover for the order), we shall be entitled to the rights under § 321 BGB. We shall then also be entitled to declare due all claims from the current business relationship that are not yet due and to demand the immediate redemption of bills of exchange against their return.

The customer shall only be entitled to a right of retention and a right of set-off insofar as his counterclaims are undisputed or have been legally established.

Returns will only be credited if we have given our prior consent. A credit note for originally packaged and resalable goods will be issued for 2/3 of the invoiced value of the goods if returned carriage paid.
 

As there are contractual obligations in many countries, our products may only be exported and re-exported with our express permission. The terms of sale, delivery and payment applicable to exports are stated in our written offer.

In the case of call-off orders, we are entitled to manufacture the entire order quantity or have it manufactured. Unless otherwise agreed, call-off dates and quantities are subject to our ability to deliver or manufacture; however, we must be notified of the call-off at least one month before the delivery date. If the goods are not called in accordance with the contract, we shall be entitled to invoice them as delivered or to withdraw from the contract after a reasonable grace period has expired.

Unless otherwise agreed, we deliver "ex works". Decisive for compliance with the delivery date or the delivery period is the notification of readiness for dispatch or collection by us. If dispatch or collection of the goods is delayed for reasons for which the customer is responsible, the costs incurred as a result shall be charged to the customer.

Partial deliveries are permissible to a reasonable extent and may be invoiced separately by us.

Production-related excess or short deliveries are permissible within a tolerance of up to 10% of the total order quantity; the total price shall change accordingly.

Goods notified as ready for dispatch must be accepted by the customer without delay. Otherwise we are entitled to dispatch them at our own discretion or to store them at the expense and risk of the customer.

In the absence of a special agreement, we shall choose the means and route of transportation.

When the goods are handed over to the railroad, the forwarding agent or the carrier, but at the latest when they leave the warehouse or the factory, the risk shall pass to the customer for all transactions, including carriage paid and free deliveries, even if we have taken over the delivery. The obligation and costs of unloading shall be borne by the customer. We shall only provide insurance at the instruction and expense of the customer.

Our delivery obligation is subject to correct and timely delivery by our own suppliers, unless we are responsible for the incorrect or delayed delivery by our own suppliers.

Delivery periods shall be extended to a reasonable extent in the event of labor disputes, in particular strikes and lockouts, as well as in the event of unforeseeable obstacles that are beyond our control, insofar as such obstacles demonstrably have a significant influence on the production or delivery of the goods. This shall also apply if the circumstances occur at upstream suppliers. These provisions shall apply accordingly to delivery dates. If the execution of the contract becomes unreasonable for one of the parties, it may withdraw from the contract in this respect.

We reserve title to the delivered goods until they have been paid for (goods subject to retention of title), namely until all claims - including conditional claims - arising from the business relationship have been settled, irrespective of the legal grounds.

The customer may only sell the goods subject to retention of title in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us. He is not entitled to dispose of the reserved goods in any other way.

In the event of breaches of duty by the customer, in particular in the event of default in payment, we shall be entitled to withdraw from the contract and take back the goods after the unsuccessful expiry of a reasonable deadline set for the customer; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The customer is obliged to surrender the goods.

The customer's claims arising from the resale or rental of the reserved goods are hereby assigned to us by way of security. The authorization to collect claims from the resale shall expire in the event of our revocation, which is possible at the latest in the event of default of payment by the customer.

Processing and treatment of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB, without any obligation on our part. The processed goods are deemed to be reserved goods. If the goods subject to retention of title are processed, combined or mixed with other goods by the customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires as a result of processing, combining or mixing, the customer hereby assigns to us the ownership rights to which he is entitled to the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall keep them in safe custody for us. The resulting co-ownership rights shall be deemed to be reserved goods.

The customer must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title, the claims assigned to us or other securities, handing over the documents necessary for an intervention. This also applies to other impairments of the reserved goods.

If the realizable value of the existing securities exceeds the secured claims by more than 20% in total, we are obliged to release securities of our choice at the request of the customer.

The quality of the goods shall be based exclusively on the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples, etc. of the customer, the customer assumes the risk of suitability for the intended purpose. Assurances or guarantees must be expressly designated as such in writing.

Material defects must be reported in writing immediately, at the latest seven days after delivery. Material defects that cannot be discovered within this period, even with the most careful inspection, must be reported in writing immediately, at the latest within seven days of discovery.

If acceptance of the goods or an initial sample inspection has been agreed, the notification of defects which the customer could have detected during acceptance or initial sample inspection shall be excluded.

As long as the customer does not give us the opportunity to convince ourselves of the defect, in particular if he does not make the rejected goods or samples thereof available on request, he cannot claim that the goods are defective.

We may, at our discretion, remedy the defect or deliver goods free of defects.

We shall only assume expenses in connection with subsequent performance to the extent that they are reasonable (proportionate) for us compared to the value that the goods would have without the defect and the significance of the defect. Excluded are costs of the customer in connection with the installation and/or removal of the defective item, for the self-remedy of a defect as well as additional expenses arising from the fact that the sold and delivered goods are located at a place other than the agreed place of performance.

We shall only be liable for damages for breach of contractual and non-contractual obligations - including for our executive employees and other vicarious agents - in the event of intent and gross negligence, limited to the typical contractual damage foreseeable at the time of conclusion of the contract; otherwise our liability, including for damage caused by defects and consequential damage caused by defects, is excluded.

The above restrictions shall not apply in the event of culpable breach of material contractual obligations; these include the obligation to deliver on time and free of defects as well as duties of protection and care which are intended to enable the customer to use the delivery item in accordance with the contract. Furthermore, these limitations shall not apply in the event of culpably caused damage to life, limb and health and also not if and insofar as we have fraudulently concealed defects or have assumed a guarantee for the quality of the delivered goods and in cases of mandatory liability under the Product Liability Act. The statutory regulations on the burden of proof remain unaffected by this.

If we are in default with a delivery or other service, the customer may demand compensation for the damage caused by the delay in addition to the service in accordance with Clauses 35 to 36; in the case of slight negligence, however, limited to a maximum of 10% of the agreed price for the delayed service. The Purchaser's right to claim damages in lieu of performance in accordance with Clauses 35 to 36 shall remain unaffected.

Contractual claims which arise for the customer against us on the occasion of or in connection with the delivery of the goods shall lapse one year after delivery of the goods. This period shall also apply to goods that have been used for a building in accordance with their normal use and have caused its defectiveness, unless this use has been agreed in writing. Our liability for intentional and grossly negligent breaches of duty, culpably caused damage to life, limb and health and the limitation period for statutory recourse claims (§§ 478, 479 BGB) remain unaffected by this.

We reserve the property rights and copyrights to cost estimates, drafts, drawings and other documents; they may only be made accessible to third parties with our consent. Drawings and other documents belonging to offers must be returned on request.

Manufacturing costs for means of production (samples, tools, molds, templates) shall be charged separately to the customer, unless otherwise agreed. This shall also apply to production equipment that has to be replaced due to wear and tear.44 Our liability for production equipment shall be limited to our own customary care. Costs for maintenance, storage and care shall be borne by the customer.

If the customer suspends or terminates the cooperation with us during the production period of the means of production, all production costs incurred up to that point shall be borne by the customer.

The means of production shall remain in our possession at least until completion of the delivery contract, even if the customer has paid for them. Thereafter, the customer shall be entitled to demand the return of the means of production if the customer has met all obligations arising from the business relationship in full.

We shall store the means of production for one year after the last delivery to the customer. The duty of safekeeping shall end if the customer does not demand the return of the means of production and has not placed a new order despite a written deadline of one month.

If we have delivered items according to drawings, models, samples or other documents provided by the customer, the customer shall guarantee that the industrial property rights of third parties are not infringed. If third parties prohibit us in particular from manufacturing and delivering such items with reference to industrial property rights, we shall be entitled - without being obliged to examine the legal situation - to cease any further activity in this respect and to demand compensation if the customer is responsible. The customer also undertakes to indemnify us immediately against all claims of third parties in connection therewith.

The customer shall use all documents (including samples, models and data) and knowledge which it receives from the business relationship only for the jointly pursued purposes and shall keep them secret with the same care as its own corresponding documents and knowledge if we designate them as confidential or have an obvious interest in keeping them secret. This obligation begins from the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.

The above obligation shall not apply to documents and knowledge which are generally known or which were already known to the customer upon receipt without the customer being obliged to maintain secrecy, or which are subsequently transmitted by a third party authorized to pass them on, or which are developed by the customer without using documents or knowledge to be kept secret.

With the issue of new sales documents, all previous price quotations or offers are invalid. We reserve the right to make design changes or improvements to tools and the associated deviations from illustrations and from the dimensions and weights stated in the catalog.

The place of performance, also for the obligations of the customer, is our registered office.

The place of jurisdiction is our registered office. We are also entitled to sue at the customer's place of business.

German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

June 2011

Online dispute resolution

Online dispute resolution pursuant to Art. 14 para. 1 ODR-VO: The European Commission provides a platform for online dispute resolution (OS), which you can find at ec.europa.eu/consumers/odr/.