General Terms and Conditions
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General terms and conditions
1. Scope of application
The following terms and conditions (of sale and supply) apply to all supplies of
Wback. Divergent terms and conditions, in particular terms and conditions of
purchasing of the purchaser, will only become valid, if expressly agreed in written
form by the parties.
2. Conditions of supply
Our offers are prior to change. Prototypes and examples are not binding. They characterize the goods generically,
but do not define or constitute their specific characteristics. Variations from
prototypes, examples or earlier deliveries and qualities as well as dimension
allowances, that during the production and processing of the raw materials are
technically unavoidable, do not entitle the purchaser to reject goods.
Scheduled delivery dates are without obligation unless confirmed in written form.
Wback keeps the term of delivery if the goods leave the works of Wback within the
term of delivery or Wback inform the purchaser about the willingness to ship.
Agreements of fixed dates are excluded. Such agreements are considered as not
The terms of delivery extend adequately through activities in the context of labor
disputes, in particular strikes or lockouts as well as unpredictable barriers that cannot
be influenced by Wback, if those barriers have a considerable effect on the
production or delivery. Wback is not responsible for the above mentioned
circumstances even if they happen while Wback is in default. In important cases
Wback will inform the purchaser about the beginning and ending of such barriers as
soon as possible.
Also business holdups of any sort and delivery difficulties without fault of Wback, as
for example loss of material and ingredients supplies or power supply, damages
caused by water or fire, unpredictable failure of machines or equipment or acts of
god, entitle Wback to defer the delivery for the term of disablement and a reasonable start-up period or to withdraw from the contract all or part concerning the not fulfilled
contract part. Wback shall inform their purchaser as soon as possible at the start and end of such hindrance.
The purchaser is entitled to ask Wback, if Wback intends to withdraw from the
contract or to deliver within a reasonable time. The purchaser is entitled to withdraw
from the contract if Wback do not respond.
Wback is entitled to partial delivery. The purchaser in not entitled to reject partial
deliveries. In this respect the purchaser has no claim for damages.
The risk passes to the purchaser at the latest by the handover of the goods to the
hauler or freight carrier or by leaving the works of Wback. That applies as well in case
of part delivery or in case Wback bears the freight charges. It is left to the purchaser
to procure transport insurance or other insurances. If the shipment is delayed
because of circumstances, that the purchaser is responsible of, the risk passes to the
purchaser by the day of readiness for shipment.
3. Conditions of payment
The prices stated by Wback are net prices quoted ex works, unless otherwise
Wback allows a date of payment of 10 days from date of invoice without cash
discount deduction, unless otherwise agreed. The payment is to be made in the
manner, that Wback has the amount at its disposal on the due date. The purchaser
bears the costs of the payments. The purchaser may only retain due counterclaims,
that are undisputed or legally recognized, or offset such counterclaims.
In the event of payment delay, delay interest of a reasonable rate, at least a rate
customary in banking, is due and payable. In either case, Wback is entitled to
demand the statutory interest rate according to § 288 BGB (German Civil Code).
If Wback decides to accept a draft or check, this is on account of payment and not in
lieu of performance. Wback is entitled to cancel the expansion for payment implied in
the draft or check acceptance anytime and ask for payment. With acceptance of a
draft or check the customary in banking discount and cashing charges will be charged
and have to be paid in cash immediately by the purchaser. Note taxes and discount
charges are always on purchasers account.
Drafts or checks are only credited under reserve. Wback does not warrant presenting
or entering a protest in time. In case of a note protest, promissory note of the
purchaser or not immediate payment of a protested acceptance by another, all our
draft or check claims become due immediately notwithstanding if they are own
acceptances or by another.
If the Purchaser does not fulfil these conditions of payment or if the financial situation
of the purchaser has substantially deteriorated or if the purchaser does not meet its
obligations to Wback even if it is an obligation from another contract on schedule
and according to the agreement, all our claims become due immediately notwithstanding the life of a discounted draft. Furthermore Wback is entitled to deliver
against prepayment or security deposit only and to withdraw from the contract after a
new appropriate deadline even after partial payment or to claim damages for non-
performance and to refuse the own performance, irrespective of the right to retract
the goods delivered subject to the reservation of title. Wback reserves the right to
request for information about the purchaser.
The setoff against counterclaims of the purchaser is only allowed, if the claims are
undisputed or legally recognized. Fulfillment of payments only takes effects if made
directly to Wback. Employees and agents are allowed to accept payments with
specific written authority only.
4. Warranty and liability
For deficiency Wback is liable as follows:
Claims or complaints have to be asserted in written form within a period of one week
after goods receiving at the ship-to location. After the deadline the goods are
considered as accepted. The same applies, if converting of the goods is started or
Deficiency, that is unknowable within the period of one week in spite of diligent
inspection, have to be notified in writing after detection immediately, by the best
before date at the latest. Warranty claims are excluded in case the goods were not
stored or transported properly.
In case of justified notification about deficiency in due time, Wback at its own choice
will fix the deficiency or deliver new products free from defects against return of the
deficient products immediately. Wback bears the costs of the supplementary
performance. This does not apply to by the purchaser caused increased expenses; in
particular Wback does not bear transportation costs, that are increased as a result of
a transportation to a different place than the place of performance.
In case the supplementary performance fails the purchaser is entitled at his own
choice to withdraw from the contract or to ask for a reduction of the the purchasing
price. The supplementary performance is considered as failed in case Wback has
attempted the supplementary performance unsuccessfully twice or in case of a
delivery of new products that are defect as well.
Complained products may not be converted or worked without express approval by
Wback and have to be stored properly for evidence preservation. Things
manufactured using complained products have to be preserved.
Our recommendations for handling have to be verified by the purchaser for suitability
for the intended purpose. Technical advices, information and recommendations for
handling are performed to the best of the knowledge. They do not represent
assurances and assurances may not be derived from them. Concerning the handling of our products the purchaser is responsible for the compliance with statutory or
This responsibility includes current mandatory identifications by the authorities and regulated by law (f.e. according to the Lebensmittel-Informationsverordnung LMIV). In particular the purchaser is responsible for violation of regulations under public law and third rights concerning wrapper and foils, which the purchaser has told Wback to use during the process of production.
Any compensation for damages is excluded, unless Wback did
a) act deliberately or grossly negligent,
b) conceal fraudulently the deficiency of the purchased product or
c) give a guaranty for the condition of the goods or
d) have acted carelessly against significant contractual obligations (cardinal obligation).
Furthermore Wback is liable for culpable injury to life, body or health. This also
applies to the obligatory liability under the Product Liability Act
The liability of Wback for damages is limited to contract specific, foreseeable
damages, unless Wback did deliberately neglect its duties.
The amount of the claim for the predictable damage of the typical contract is limited regards a careless act against cardinal obligations
5. Retention of title and other securities
Any delivery takes places with retention of title. The property in the goods passes on
to the purchaser after complete fulfilment of all claims from the business connection
with the purchaser.
In case of the goods being converted or assembled with other goods Wback is
considered as the manufacturer. If the goods are used for the production of a new
object and also several other goods are used for this production and these goods are
also delivered subject to retention of title, Wback acquires a co-ownership share of
the new product at the ratio of the value of the goods delivery by Wback and the
value of the other used goods at the time of the manufacturing.
The purchaser, who is mercantilist, may resell the delivered goods under conditional sales in the regular course of business only. Hereby he assigns all claims from resells on customers in full to Wback as security for the purchase price claim. Hereby Wback accepts the assignement . The Purchaser is authorized to receive accounts out of the sales until cancelation.
In case the value of the goods delivered subject to the reservation of title and the
assigned claims exceeds the value of the claims of Wback against the purchaser by
more than 20 %, Wback will release the exceeding securities by its own choice on
The purchaser has to inform Wback in written form immediately about seizures or
other enforcements concerning the assigned claims or the goods delivered subject to
the reservation of title in order that Wback is able to take adequate legal steps early
6. Industrial property and similar rights
In the event objects were produced according to the designation of the purchaser, he
takes responsibility that no industrial property or similar right of a third party will be
violated by the manufacture. The purchaser is liable for any damage arising from
claims of industrial property or similar rights.
All rights of patents, utility models, design patents, trademarks, configurations and
other industrial property and similar rights and copyrights for the object of agreement
remain to the holder of right.
7. Jurisdiction, place of performance and miscellaneous
For both parties the place of performance shall be the place where the goods are
delivered, that is Bönen or, in case the goods are delivered in Leipheim,
In case the purchaser is merchant in terms of a commercial code, the place of
jurisdiction shall be Hamm/Germany or at the choice of Wback the venue of the
The contractual relationship between Wback and the purchaser shall be governed by
the law of Germany only excluding the application of foreign law.
Should any part of this agreement be invalid for any reason, the rest of the agreement
shall remain unaffected and valid. The invalid part has to be replaced by the parties
with a corresponding text, which is valid and equivalent as possible to the intended