General Conditions of Sale, Delivery and Payment
valid beginning 01-01-2002
§ 1 General
- Our company, in the following also called "Seller" provides our deliveries and performances exclusively on basis of the following conditions. We contradict to deviating purchaser's conditions. They only will become a contractual contents if and as far as they correspond with the seller's conditions or if the seller acknowledged them in writing. They will also not become basic terms of a contract, should the seller not contradict explicitly the deviating conditions. This also applies in case of repeated forwarding. Once the deliveries and performances are accepted, the seller's conditions are deemed to be recognized.
- All additional agreements, alterations and supplements to contractual agreements will become only valid, if they are confirmed by the seller in writing This also applies to possible verbal agreements or promises given by employees of the seller, as well as warranty of properties.
- An "entrepreneur" is according to § 14 of the BGB (Civil Code) a natural or legal person or a judicable private company, which acts, when concluding a legal transaction, in execution of its commercial or stand-alone professional activity.
- A "user" is, in the sense of the following condition and according to § 13 BGB, each natural person, who concludes a legal transaction for a purpose which cannot be included in his commercial nor stand-alone professional activity.
§ 2 Offer and contract documentations
- The offer of the seller is to be understood without engagement as far as in the order confirmation there is not determined something other. The delivery of catalogues, price lists and prospectuses does not oblige to a delivery.
- Documentations like photos, drawings, dimension and weight details or other technical details, as well as DIN, VDE or other operational or co-external norms referred to and being part of the offers or contractual agreements, denote only the object of agreement and do not constitute a warranty of properties.
- It is the seller's written order confirmation which is decisive for the content and extent of the contractual agreement. Additional agreements, modifications or supplements etc. have to be confirmed in writing by the seller. Once the order procedure has started, the order is deemed to be accepted. The invoice replaces the order confirmation.
- The seller reserves its proprietary rights and copyrights in photos, drawings, calculations and other documentations. This also applies to such written documentations having a "confidential" character. Before giving those documentations to a third party, the buyer or purchaser has to seek for the seller's explicit acceptance.
§ 3 Price-delivery conditions
- Prices are to be understood exclusive the transport packing and insurance ex works, if not explicitly agreed otherwise. For orders without price agreement apply the list prices of the seller, valid on such day of delivery. Prices are to be understood in EURO, if no other currency was agreed upon in writing.
- The legal value added tax (VAT) is not included in the prices; it will be entered in the invoice separately and in the legal rate.
- As far as no other agreements were concluded in writing, the following conditions of payment apply: - 10 days after date of invoice net
- If the date of required payment was exceeded or in case of delayed payment, the seller may invoice interest in credits being in line with banking practise. All the seller's debts outstanding are becoming due immediately if the payment conditions are not adhered to.
- The purchaser can only set off a seller's claim, if the counter claim of the purchaser is deemed to be undisputable or a final title is available; the purchaser can only claim a right of detention as far it is based on claims deriving from the purchase contract.
§ 4 Delivery
- Terms of delivery which can be agreed to in a binding or not binding form, have to be determined in writing. Delivery terms are starting with the conclusion of the contract.
- If the seller because of a circumstance, which he or a vicarious agent has to justify, is prevented from delivering the object of purchase at the term agreed upon or within the agreed term (default of delivery), then he will be liable according to legal regulations. If the seller or his vicarious agent cannot be held responsible for the default of delivery, then the seller will be liable only for the foreseeable, typically happening damage. If the default of delivery bases only on a violation of a not substantial contractual obligation, then the purchaser can claim a lump-sum settlement amounting to max. 10 % of the value of the delivery.
- Force majeure and events which prevent the seller temporarily, through no fault of his own, to deliver the object of purchase at or within the term agreed upon, will entitle him to prolong the delivery or performance by the duration of the obstruction plus a reasonable start-up time. Should such obstructions lead to delay in performance of more than four months, then the purchaser can withdraw from the contract. Other rights of rescission remain untouched.
- The purchaser is obliged to accept the object of purchase. If the purchaser defaults in accepting delivery, then the seller will be entitled to claim a compensation for the damage incurred to him.
- The seller reserves the right of changes in constructions or shapes, deviations in the colour shade as well as changes of the scope of delivery which are originated by the manufacturer and are occurring during the time of delivery, provided those changes or deviations do not violate seller's interests and are reasonable for the purchaser. As far as the seller or manufacturer uses characters and numbers for the order or the ordered subject, only out of this, no rights can be derived regarding the concretisation of the ordered subject or the scope of delivery.
§ 5 Passing of risks
- The risk of a random extinction and random deterioration of the subject passes to the purchaser when the subject is being handed over.
- Should the purchaser be no user, then the risk passes to the purchaser when the subject has been delivered, if it has been handed over to the person or company executing the transport and if the merchandise has left the seller's store for being shipped.
§ 6 Warranty
- In case the purchaser is not a consumer, then the warranty time will be one year for subjects being newly produced. With used goods the warranty will be 1/2 year in case the purchaser is a consumer. In the contrary, if the purchaser is not a consumer, the sale of used goods will be made excluding the warranty of quality. The warranty starts with the delivery of the goods.
- In case of expendable parts - expendable parts are those products whose functionality due to their technique are limited to a certain wear life, i.e. brake discs, brake pads, filters etc - warranty claims exist only in such cases if an expendable part fails exceptionally because of defects before the expiration of the usual wear and working life. The termination of the usual wear and working life for expendable parts does not represent a defect in the sense of the warranty, even if this is achieved before the expiry of the 1 respectively 2 year's warranty.
- The warranty claims of the buyer are first of all limited to an additional claim of performance, i.e. a claim for rework or for a compensation delivery. If the purchaser is not a consumer, then the seller has the right to choose between rework or compensation delivery. If the rework or compensation delivery fails, then the purchaser may demand a deduction or he can withdraw form the contract, The rework failed, if and as far as a delay, fixed by the seller for the additional performance, elapsed without results. The provisions for exercising the right of rescission are determined by § 323 BGB.
- The seller will be liable according to legal regulations, as far as the purchaser claims damages which are based on malice, intention or gross negligence on part of the seller, including malice, intention or gross negligence of his representatives or vicarious agents. If the seller cannot be charged with a wilful violation of the contract, then the liability will be limited to the foreseeable, typically occurring damage. Unless the claim of damages is based on a culpable neglected correction of faults, then the claim is limited with regard to the installation / demounting costs to the height of the corresponding rates fixed in the DAT/Schwacke list. Otherwise a liability for damages will be excluded, so far the seller is not liable for damages which did not arise at the delivered subject.
- In case of later improvements the seller will be obliged to bear all costs arising from the performances for correcting such faults, i.e. especially transport costs, tolls, labour and material costs. In case of non-consumers this will be only valid, as far as the costs do not increase by having to transport the goods to another place than the place of delivery.
- The purchaser has to submit his claims for the removal of a defect with the seller.
- In case of a defect, resulting from a faulty installation, the seller is only obliged to overtake a warranty unless the installation of the sold subject has been made with expert knowledge. The buyer has to prove the experienced performance.
§ 7 Entrepreneur's recourse in case of selling to industrial resellers
- If the buyer re-sells the sold subject within the scope of his commercial business to another consumer and if he had to take back this subject due to a defect, or if he had to reduce the purchase price, then the buyer can claim his warranty rights with the seller, without fixing a term.
- Moreover the buyer can claim compensation for expenses which he had to bear relatively to the consumer, unless the defect, claimed by the consumer, was already existing when the risk passed over to the buyer. Those expenses are first of all transport costs, tolls, working and material costs.
- Within the scope of this entrepreneur's recourse, the buyer has no right to claim for damage.
§ 8 Reservation of title
- The purchased subject remains property of the seller until his receivables, resulting from the purchase contract, will be paid. If the buyer is a merchant in the sense of the HGB (German Commercial Code) the seller will reserve his right on all delivered subjects until he receives all payments originating from the business relation.
- The buyer is entitled to resell the delivered items within the scope of a regular business; but he assigns already now all debts to the seller; the amount will be the final amount of the invoice (incl. VAT) including all costs which arose when reselling the items to the customers or to a third party, independently whether the delivered items have been resold without or after processing. The buyer is entitled to collect such receivables also after the assignment. The seller's right to collect the outstanding debts himself remains untouched. The seller obliges himself not to collect the outstanding debts, as long as the purchaser meets his liabilities to pay and no petition is filed to open bankruptcy proceedings. If one of the latter circumstances occurred, then the buyer will on seller's demand provide him with all informations which are necessary to collect the assigned claims, he will hand him over all related documentation and he will inform the respective debtors (third parties) about the assignment.
- In case the value of the seller's securities exceeds the value of the claims to be secured by more than 20 %, then the seller is obliged to release the securities so far and on buyer's demand. The selection of the securities to be released lies in the responsibility of the seller.
§ 9 Place of performance and jurisdiction - other
- Place of performance is the place where the seller has his domicile.
- As far as the buyer is a merchant in the sense of the HGB, a legal person of public law or public special property, jurisdiction will be the place where the seller has his domicile. Nevertheless the seller has the right to sue the buyer at his principal place of business or his place of residence.
- Supplementary to the provisions of the General Sales, Delivery and Payment Conditions applies exclusively the Law of the Federal Republic of Germany.
RAC Germany® Ralf Clobes e. Kfm., Erich-Heckel-Ring 6, D-36041 Fulda, Germany
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Sous réserve de modifications techniques.