(1) All deliveries, activities, offers and contracts of the seller are exclusively bound to these terms and conditions. Those become binding after conclusion of contract and are valid even if no explicit references during further business relations are made.
(2) Terms and conditions of the buyer or of any third party do not apply even if the seller does not object their validity in every separate individual case. Even if the seller refers to or points to a document that includes the terms and conditions of the buyer or of a third party, this does not count as approval of the conditions´ validity.
(3) Supplements to this agreement, changes or additions of this contract are only valid when they are confirmed in writing.
(4) Utilization of one´s own internet presence (domain) that contains the company name "Wilbers"
without our explicit written notification, is forbidden. In case of violation the immediate cancellation of the contract follows.
2. Offer and conclusion of contract
(1) The presentation of the product array of Wilbers Products in catalogues and on the website www.wilbers.de
is no offer according to §§ 145 et seqq. BGB. All local offers are if not explicitly marked as binding, always without obligation, meaning that they are only an invitation for submission of an offer. The customer, by ordering by email, fax, phone or in writing over the online shop at www.wilbers.de
delivers an obligatory purchase order. We are not obliged to accept the customers purchase order.
(2) A conclusion of contract only comes about after explicit order acceptance by us either by written confirmation or by confirmation by email.
(3) Small variations or technical changes to pictures or descriptions are possible and do not influence the conclusion of contract relations.
(4) Apparent errors, writing-, printing- and calculation-mistakes for us are not binding.
(5) In case that our co-workers make supplements to this agreement that exceed the written contract, those only become part of the contract if confirmed by us in writing.
3. Notice of revocation
(1) Right of revocation
You can recede from the contract within 14 days without giving any reasons in writing (for example by letter, fax, email) or – in case that you received the products before the end of this deadline – by return consignment of the product. The deadline starts with receipt of this instruction in writing however not before the arrival of the goods at the recipient (in case of repetitive shipment of comparable goods not before the arrival of the first partial shipment) and also not before fulfillment of our information duties concerning article 246 § 2 in conjunction with § 1 passage 1 and 2 EGBGB (Introductory Law to the Civil Code) as well as the fulfillment of our duties concerning § 312 passage 1 sentence 1 BGB in connection with article 246 § 3 EGBGB. To claim your right of revocation it is enough to send back the revocation or the goods on time. The revocation is to be sent to:
Wilbers Products GmbH
Telephone: +49(0)5921 72717-0
Fax: +49(0)5921 74099
Managing director: Mr. Bernardus Wilbers
(2) Consequences of revocation
In the event of an effective/valid revocation, each party shall return the benefits received to the other party and utilizations (for example interests) if applicable have to be given back.
In case that you do not return received services as well as utilizations (for example utilization advantages) in full or only in degraded state you’ll have to pay compensation. You only have to pay compensation for lost value, if the deterioration of the goods comes from designated use that goes beyond testing the products´ function or characteristics. Testing the “products´ function or characteristics” means testing and sampling the respective goods like it can be done and like usual in a retail shop. Goods that can be packaged properly can be sent back on our risk. The regular costs of reshipment are on your account, if the delivered goods match the ordered goods and if the price of the reshipped goods does not exceed 40 Euro or if, in the event of higher costs of the goods during the time of revocation, you did not provide contractual payment for partial shipment. In all other cases the return shipment is without and costs. Goods that cannot be packaged are picked up at by us. All liabilities to pay have to be settled within 30 days. The deadline for you starts with the return of the goods and for us with their receipt.
End of notice of revocation
(3) Exclusion of revocation
The right of revocation is not valid, at least until otherwise
expressively agreed on, for shipments of goods that are built after customer specification or are clearly manufactured referring to the customers personal needs (§ 312 b BGB).
4. Additional right of revocation
Next and independent of the legitimate right of revocation stated under 3 we grant you as our customer for all our products - except for custom-made-products and shock absorbers for special vehicles that are marked accordingly in our model- and pricelist - a right of return for 30 days starting with the receipt of the products without somehow imitating the legitimate right of revocation. You can return all such products that have not been damaged or used, meaning installed within 30 days after receipt of the goods to us. In this case after examination of the goods we refund you the paid sales price. If the reshipment takes place later than 14 days after receipt of the products or if you ordered the goods incorrectly we charge a handling fee of 10% of the gross sales price. This additional right of return does not apply for our service point partners and importers.
5. Prices and payment
(1) Our prices are in Euro including the legitimate VAT.
(2) Unless otherwise expressly agreed
on, our prices are pickup prices quoted ex-works.
(3) If the customer requires shipment the customer has to bear the applying shipping costs. Further details arise from regulation number 7.
(4) All prices are without obligation
. Printing errors or mistakes can unfortunately never be fully excluded and remain reserved.
(5) Acceptance of cheques is only on account of performance.
6. Delivery- and performance-regulations
(1) The performances of the seller to the buyer are determined in the order placement.
(2) Unless otherwise agreed on the goods are picked up by the buyer at the factory.
(3) All information given about delivery time is without obligations unless as an exception a fixed delivery date was promised.
(4) Partial deliveries to a reasonable extend are acceptable. We are not obligated however to perform partial shipments
(5) Delivery time will be prolonged -even during a delay- appropriate to force majeure and all unforeseeable events that take place after conclusion of contract and are out of our responsibility (especially process upset, strike, lock-out or traffic route disturbances) if those events demonstrably play an important role on the scheduled operation respectively delivery. This is also true for if the disturbances happen to our sub-suppliers, suppliers or sub-contractors. We will announce the beginning and end of such disturbances to the buyer as soon as possible. The buyer can demand an explanation if we want to retreat from the contract, or if we want to delivery within an acceptable time period. If we do not immediately explain ourselves, the buyer can retreat from the contract.
(6) We only are liable for deliveries on time if the delay is due to an actual fault or if one of our vicarious agent is responsible.
7. Deliveries and risk bearing
(1)The deliveries of goods are ex-works. With the delivery of the products to the forwarding agent ordered by the buyer, the risk for the delivery passes on to the buyer. This is not valid when the transportation is done by our own vehicles and if the buyer is a consumer in the sense of § 13 BGB.
(2) We only send our goods if in the particularly case the shipment was agreed on in writing.
(3) The shipping method is cash on delivery.
(4) The total shipping costs consist of postage and additional product costs and are on the buyers account.
(5) Goods that are not on stock can be sent in partial deliveries.
(6) The shipment is on account of the customer and, in case that he is no consumer as defined in § 13 BGB, on his risk as well.
(7) If the delivery is prolonged on desire of the buyer or on fault of the buyer the goods are stored on the buyers´ costs. In this case the readiness for shipment equates with the actual shipment. With storage the goods invoice is to become due at once.
8. Setoffs, withholding
The buyer only then has the right of setoff if his counterclaim is legally effective or unquestionably accepted. Additionally he is only entitled to exercise his right of withholding if his counterclaim is based on the same contractual relationship.
9. Reservation of ownership
(1) The goods delivered remain the property of the seller until all debts are completely paid.
(2) In case of goods, which the buyer receives from us in context of a continuous business relationship, we reserve the ownership until all our requests from the business connection, including all possible accruing debts –also from simultaneously or later closed contracts- are settled. This is also then valid if individual or all claims were included in a current invoice and the balance is struck and recognized. If liability of the supplier arising out of a bill of exchange is legally founded regarding payment of the purchase price, the reservation of ownership will not expire before payment of the bill of exchange by the buyer as the drawee.
The goods, as well as other goods included in the reservation of ownership that take their place, are referred to as reserved goods.
(3) The buyer will store the reserved goods for us at no costs.
(4) The buyer is entitled to process and sell the reserved goods in normal business dealings until the enforcement event takes effect (paragraph 9).
(5) If the reserved goods are somehow processed by the buyer, it is agreed that the processing is done in the name and on behalf of the buyer as manufacturer and the seller immediately gains ownership of the newly created product or, in case that the value of the processed goods is higher than the value of the reserved goods, gains co-ownership of the created product in relation of the value of the reserved goods to the created product. In the event that no such acquisition of ownership for the supplier occurs, the buyer here and now transfers its future ownership or - in the ratio mentioned above- his co-ownership of the created product as security to the seller. If the reserved goods are connected to other objects or things, thus creating a homogeneous unit, or are inseparably mixed and if one of the others objects is considered the main object, the seller transfers his co-ownership of the actual goods at the ratio mentioned in the first sentence.
(6) In the event that the reserved goods are resold the buyer already now transfers the resulting claim against the acquirer or, in case of co-ownership, on a prorated basis according to the co-ownership portion. The same is true for other claims that take the place of the reserved goods or otherwise arise referring to the reserved goods, for example insurance claims or claims from unauthorized handling in case of loss or damage. The seller revocably authorizes the buyer to collect the claims assigned to the seller in his own name and for his invoice. The seller can only revoke this authorization in the event of enforcement of the reservation of ownership.
(7) If third parties take hold of the reserved good, in particular by garnishment, the buyer has to immediately advise of the property of the seller and inform the seller so as to enable the seller to enforce his rights of ownership. In case that the third party is unable to reimbursing the seller the court and out-of-court costs that incur in this connection, the buyer accepts liability for those costs.
(8) On demand of the buyer the seller is obliged to release the guarantees entitled to him according to his choice, insofar as their liquidable value exceeds the receivables to be secured by more than ten (10) per cent.
(9) In the event that seller rescinds the agreement based upon buyers´ breach of contract –especially in case of buyers´ payment default - (enforcement of reservation of ownership), the seller is entitled to demand the reserved goods back.
10. Defects, warranty and liability
(1) We are not liable for damages arising from inappropriate or improper use, incorrect installation or operation that is not done by us, changes or repairs, faulty or negligent handling, wanton destruction or natural wear and tear.
(2) The entitlement to claim compensation expires, if the buyer is not a consumer, after 12 months. This provision does not apply where Ionger periods are prescribed by law according to § 479 BGB. In the event that the buyer is a consumer according to § 13 BGB and therewith is a natural person concluding the legal contract on purposes that can be attributed neither to his commercial business nor his self-employed occupation, the statutory provisions apply that the liability for damages and defects for the sale of used goods is limited to 12 months. This does not apply if our liability is mandatory due to other compulsory legal provisions.
(3) Section 12 applies to warranty claims.
11. Independent warranty
(1) Apart of legal warranty obligations we grant an independent warranty for the following products:
- 29 years for Wilbers- and Promoto- fork springs
- 5 years for Wilbers shock absorbers, Eco-Line and WESA shock absorbers on faultlessness, usability, manufacture and durability of the utilized materials.
(2) During this time we will settle all justifiable warranty cases on our discretion free of charge, either by repair or exchange.
(3) The warranty period starts with date of purchase and is valid for the whole EU.
(4) The independent warranty is valid next to the statutory rights and it does not influence those rights.
(5) Excluded from the guarantee are damages that are the result of incorrect handling, normal wear and tear, mechanical or chemical influences, due to force major as well as for intervention or repairs by yourself or third parties.
(6) Furthermore excluded are spare parts that are not part of the basic hardware of the product.
(7) In case of a warranty claim send it along with proof of purchase to the address below:
Wilbers Products GmbH
Phone: +49(0)5921 72717-0
Fax: +49(0)5921 74099
12. General limit of liability and claims of compensation
(1) Damage- and expenditure-claims for compensation of the buyer (subsequently called claims for compensation), for whatever legal argument, especially due to breach of duties from a contractual relationship and for unlawful acts are excluded. This does not apply if a warranty has been granted or in case of procurement risk. This also does not apply, where a mandatory liability is present due to statutory provisions, especially under the Product Liability Act, in cases of gross misconduct, of deliberate acts, on account of personal injury to life, body or health, or due to breaches of a substantial contractual obligations. The claim for damages due to the infringement of material contractual duties, however, shall be restricted to the foreseeable damage related to the type of contract unless it has not been caused by gross negligence, deliberately, or if there is an assumption of liability due to injury of life, body or health. This is not connected with a change of burden of proof to the detriment of the customer.
(2) This rule applies for the buyer accordingly.
13. Data protection
The buyer is informed herewith that all personal data obtained in regard to the business relationship will be processed according to the German Data Protection Act.
14. Place of performance, court of jurisdiction, applicable law
(1) Place of performance and sole court of jurisdiction for all deliveries and payments (including cheques and bills of exchange) as well as for all disputes is, as long as the buyer is a businessman, a legal entity under public law or public property, or if the buyer has his residence or commercial headquarters outside Germany, Nordhorn. We are, however, entitled to file suit before the buyers´ competent court of justice.
(2) The contractual relationship is governed exclusively by the law applicable in the Federal Republic of Germany excluding the Haager and WienerSales Convention and UN-Purchasing Convention
The unauthorized use of our TÜV- (German Technical Inspection Agency) or ABE- (Type and Operation Approval) certificates is forbidden.
16. Severability clause / Salvatoric clause
Should individual clauses or provisions of this contract with the buyer, including these General Terms of Business, be or prove to be partially or wholly impracticable, the validity of the other regulations remains untouched. The partly or wholly invalid or unenforceable clause shall be replaced by a clause as close as possible to its original commercial and intended purpose.
Version of May 2017