1.a) Our deliveries, services and offers to traderss are exclusively subject to these terms and conditions (GTC) also without this being expressly stated. They shall apply to all contracts with companies, legal entities under public law and special funds under public law, as well as to all future business relationships, even if they are not expressly agreed upon anew. Our GTC shall be considered adopted at the latest when the goods are accepted.
1.b) In the case of divergent agreements, in particular, conflicting terms and conditions of purchase, our express written consent is required for their validity. Divergent terms shall also not become a component of the contract, when Reifen Gundlach GmbH does not contradict them.
2.a) Offers are non-binding. Changes to offers with regard to design and colour shall remain reserved. Drawings, illustrations, measurements, weights and other specifications are only binding if this has been expressly agreed upon in writing. Orders shall be considered accepted, when Reifen Gundlach GmbH executes the order. Our sales staff is not entitled to make verbal agreements or promises that go beyond the written contract.
2.b) Delivery times quoted are approximate and non-binding, unless they were specifically agreed as binding.
2.c) After accepting the offer, Reifen Gundlach GmbH is entitled to withdraw at its discretion either completely or partially or to request that security is provided, if a change in the business of the company or the entity buying should occur or if their creditworthiness, as a result of facts that subsequently become known to Reifen Gundlach GmbH, appears to be in doubt according to our judgement.
2.d) Before placing the order, the buyer must inform itself of possible requirements, in particular TÜV [German Association for Technical Inspection] certificates and requirements from the automobile manufacturer.
3.a) Prices quoted are non-binding. The list prices valid on the day of delivery shall be decisive.
3.b) Prices are to be understood ex our respective warehouse. Unless otherwise agreed, the buyer shall bear the cost of shipping and packaging. The cost of a possibly agreed transport or similar insurance shall be borne by the buyer, unless otherwise agreed.
3.c) In the case of partial deliveries, each delivery can be invoiced separately.
3.d) Should the buyer be in default of payment, we are entitled to charge default interest in the amount of 8 percentage points above the base interest rate. In such an event, we may prove a higher interest rate at any time and invoice it.
3.e) Not complying with the payment terms, default or circumstances that could reduce the buyer’s creditworthiness shall result in all our receivables becoming due immediately.
3.f) The buyer may only offset counter-claims if these have been legally established or are not disputed or are acknowledged by us.
3.g) The buyer is entitled to a right of withholding if buyer’s counter-claim is based on the same contractual relationship.
4.a) Deliveries shall be made as soon as possible. Agreed upon times of delivery begin with sending the order confirmation, however, not before the buyer has supplied the documents, permits, certificates that he is obliged to provide, as well as not before an agreed on advance payment has been received and all technical issues have been clarified. The delivery deadline has been met if the delivery item leaves our warehouse or delivery readiness has been announced before it expires.
4.b) Should unforeseen events occur that are beyond our control and that we cannot avert, despite the diligence reasonable in the given circumstances, irrespective of whether they occur to us or to one of our suppliers, such as operational disruptions, delays in the supply of essential raw materials at our or one of our suppliers’ place of business and similar events, we are entitled to withdraw from the delivery contract in total or in part or to adequately extend the delivery deadline at our discretion. We shall be due the same rights in the event of strikes or lock-outs at our or our sub-suppliers’ place of business. We shall inform our customers of such circumstances immediately.
4.c) In the event of delayed delivery, the buyer may withdraw from the contract after reasonable extra time has passed without result. Should it be impossible for us to deliver, the buyer shall have this right even without setting extra time. Delayed delivery shall be equal to impossibility when delivery does not occur for more than a month. Claims for damages (including possible consequential damages) are excluded without prejudice to the ruling under point 4.d); the same shall apply with regard to reimbursement of expenses.
4.d) If an exclusion or limitation of liability has been agreed, the exclusion of liability stipulated in point 4.c) shall not apply to damages from injury to life, limb or health, which are based on an intentional or negligent violation of duties on our behalf or on an intentional or negligent violation of duties on behalf of one of our legal representatives or one of our vicarious agents; it shall also not apply, even if an exclusion or limitation of liability has been agreed, for other damages that are based on an intentional or negligent violation of duties on our behalf or on an intentional or negligent violation of duties on behalf of one of our legal representatives or one of our vicarious agents. Should we be responsible for violating an essential contractual duty or a “cardinal duty”, liability shall not be excluded but limited to foreseeable damages that are typical for such contracts. The above shall apply accordingly in the case of compensation of expenses.
4.e) The limitations of liability in point 4.c) and 4.d) shall not apply if a fixed commercial transaction was agreed on; the same shall apply if the buyer can assert that buyer’s interest in fulfilling the contract has ceased due to the delayed delivery caused by us.
4.f) Should delivery be refused, the delivery costs shall in all events be borne by the buyer.
4.g) We are at all times entitled to perform partial deliveries.
5.a) Place of delivery and performance is our place of business.
5.b) If the buyer is obliged to collect, risk shall be transferred to the buyer when goods are handed over to buyer. The same shall apply for an obligation to dispatch when risk is transferred with handover to the freight forwarder. In the case of an obligation to deliver, risk shall pass to the buyer when the items leave our factory premises.
5.c) Even if delivered items present serious defects, the buyer must accept them without prejudice to buyer’s other rights.
5.d) Partial deliveries shall be permitted if they are acceptable to the buyer.
6.a) We shall retain ownership of all goods delivered until the buyer has paid all present and future claims from the business connection. The retention of title shall include spare and replacement parts even when they have been assembled, because this does not make them essential components in terms of Art. 93 BGB [German Civil Code].
6.b) In the event that the buyer’s conduct constitutes a breach of contract, in particular, for default of payment, we are entitled to take back the goods; the buyer shall now already agree to such a collection of goods. Taking back goods shall only constitute a withdrawal from the contract if this has been expressly declared by us. Costs incurred by us through the collection of goods (especially transport costs) shall be borne by the buyer. We are further entitled to forbid the buyer to resell or process the goods under retention of title in any way and to revoke its right of collecting receivables (point 6.e) 2nd paragraph). The buyer may only demand delivery of the goods taken back without express declaration of withdrawal, after the buyer has paid the purchase price and expenses in full. The buyer shall give us the right to disassemble the goods where the vehicle is found. The respective garage owner or property owner where the vehicle has been parked is herewith authorised by the buyer to surrender the goods of Reifen Gundlach GmbH to it. In particular, the buyer expressly declares that the buyer shall not attempt to delay surrender by stating that the goods have become a component of a different item through combination with the vehicle. The buyer is aware that in this regard the buyer is not able to appeal to legal provisions, because it is at any time possible to separate the rims and tyres from the vehicle without compromising the individual value of the goods or of the vehicle.
6.c) The buyer is obligated to treat the goods with care.
6.d) The buyer may neither pledge the delivery item or the claims that supersede it nor assign them as security. The buyer must inform us in writing immediately if a pledge or any other third party interventions have occurred, so that we can take legal action pursuant to Art. 771 ZPO [Code of Civil Procedure]. Any costs remaining from this action despite recovery in the proceedings according to Art. 771 ZPO, must be borne by the buyer.
6.e) The buyer is entitled to resell, process or combine the purchased item in the normal course of business; in this case, however, the buyer shall already now assign all its receivables from resale, processing, combination or other legal grounds to us (especially from insurances or unauthorised actions) in the amount of the final invoice agreed by us (including VAT). The buyer shall be authorised to collect these receivables even after assignment, whereby our right to collect the receivables ourselves shall remain unaffected. However, we undertake not to collect the receivables as long as the buyer meets its payment obligations with the proceeds collected, does not default on payments and no application to institute insolvency proceedings has been made or a suspension of payments exists. Should this, however, be the case, the buyer must inform us of the assigned receivables and the debtors at our request, give us all information necessary to collect, hand over the relevant documents and inform the debtor (third party) of the assignment. In the case of breach of contract by the buyer (in particular, default of payment), we can revoke the authority to collect.
6.f) The retention of title shall also extend to the products created by processing, mixing and combining our goods to their full value, whereby these procedures shall be conducted for us so that we are considered the manufacturer. Should the title of third parties be maintained through the processing, mixing or combining with their goods, we shall acquire co-ownership in proportion to the objective value of these goods.
6.g) Securities that we are entitled to shall not be realised insofar as the value of our securities exceeds the nominal value of the claims to be secured by 30%.
6.h) Should we assert the retention of title in the case of default of payment or threat thereof as well as pledge the delivery status, this shall be considered a withdrawal from the contract. We shall not be required to set a deadline before exercising the right of withdrawal.
7. If the buyer has properly fulfilled the obligation of inspection and notification according to Art. 377 HGB [German Commercial Code], we shall be liable for defects as follows:
7.a) Should the purchase item be defective, we are entitled to choose to either rectify the defect or deliver a defect-free item (remedial action). A prerequisite for this is that it concerns a significant defect. Should one or both of these types of remedial actions be impossible or disproportionate, we are entitled to refuse them. We may refuse remedial action as long as the buyer has not fulfilled its payment obligations to us to the extent that corresponds to the defect-free portion of the delivery.
7.b) Should the remedial action mentioned in point 7.a) be impossible or fail, the buyer may, at the buyer’s option, reduce the purchase price accordingly or withdraw from the contract in accordance with legal provisions; this shall apply, in particular, if remedial action is culpably delayed or refused, as well as if this fails a second time. If not otherwise regulated below (point 7.d)), further claims by the buyer, irrespective of the legal basis (in particular, claims from violating primary or secondary contractual duties, reimbursement of expenses with exception of those according to Art. 439 (2) BGB, unauthorised actions as well as other causes in law), are excluded; this shall apply, in particular, to claims from damages beyond the purchased item as well as claim for compensation of lost earnings; included here are also claims that do not result from the defectiveness of the purchased item.
7.c) The above provisions shall also apply to deliveries of a different item or of a lesser quantity.
7.d) If an exclusion or limitation of liability has been agreed on, the exclusion of liability regulated in point 7.b) shall not apply to damages from injury to life, limb or health which are based on an intentional or negligent violation of duties on our behalf or on an intentional or negligent violation of duties on behalf of one of our legal representatives or one of our vicarious agents; it shall also not apply, even if an exclusion or limitation of liability has been agreed, to other damages that are based on an intentional or negligent violation of duties on our behalf or on an intentional or negligent violation of duties on behalf of one of our legal representatives or one of our vicarious agents. Should we be responsible for violating an essential contractual duty or a “cardinal duty”, liability shall not be excluded but limited to the foreseeable damage that is typical for such contracts. Otherwise it is excluded according to point 7.b) Furthermore, the exclusion of liability shall not apply in cases where liability exists pursuant to the product liability law regarding personal or material damages to privately used objects. It shall also not apply when a guarantee has been given and when a quality has been assured, provided such a defect here included triggers our liability. In the case of reimbursement of expenses the above shall apply accordingly.
7.e) Claims to remedial action, compensation for damages and reimbursement of expenses shall become time-barred one year after delivery of the purchase item. Claims to price reduction and exercising a right of withdrawal shall be excluded, if the claim to remedial action has become time-barred. However, in the case of sentence 2, the buyer may refuse to pay the purchase price if the buyer were entitled to do so due to withdrawal or price reduction; in the case of an exclusion of withdrawal and a subsequent refusal to pay, we are entitled to withdraw from the contract.
7.f) Claims from manufacturer’s recourse shall remain unaffected by this section.
8. If the delivery item can not be used by the buyer according to the contract or defects arise and this is attributable to us due to omitted or faulty execution of suggestions and advice as well as other secondary obligations occurring before or after conclusion of contract (in particular, instructions on the subsequent processing of the delivery item), the stipulations under points 7) and 9) shall apply accordingly, under exclusion of further claims of the buyer.
9. The following provisions shall apply to violations of duties outside of damages and should neither exclude nor limit the right of withdrawal. In addition, legal and contractual rights and claims due to us should neither be excluded nor limited.
9.a) The buyer may withdraw from the contract if the entire delivery definitely becomes impossible; the same shall apply in the case of failure. The buyer may also withdraw from the entire contract, if for an order of the same items, we are responsible for the fact that part of the delivery regarding quantity can not be manufactured and the buyer is not interested in the partial delivery; should this not be the case the buyer may reduce the respective payment amount accordingly; a right of withdrawal shall not apply in the case of an insignificant violation of duties.
9.b) Should a delay in delivery occur and, after justifying the delay, the buyer grants us appropriate extra time to perform and this extra time is not adhered to, the buyer is entitled to withdraw. In the case of delay of part of the delivery, paragraphs 1 and 2 shall apply accordingly. Should the buyer request a different version of the delivery item at any point before delivery, the course of the time of delivery shall be interrupted until the day the version has been agreed on and possibly extended by the time required to produce the other version.
9.c) Withdrawal is excluded if the creditor is solely responsible or to the prevailing extent for the circumstance that would entitle him to withdraw, or if the circumstance for which we are responsible occurs at the time the creditor is in default of acceptance. In the case of impossibility, we reserve the right, in the above events, to assert our claims to payment in accordance with Art. 326 (2) BGB.
9.d) Additional claims of the buyer irrespective of the legal basis (in particular, claims from culpa in contrahendo, violation of primary and secondary contractual duties, unauthorised actions as well as other causes in law) are excluded; this shall apply, in particular, to claims from damages outside of the purchase item as well as for claims for compensation of lost earnings; included are also claims that do not result from the defectiveness of the purchase item. This shall not apply if the cause of damage is based on intention or gross negligence on our behalf or on behalf of our legal representative or vicarious agents. This shall also not apply if the damage is one of culpable injury of life, limb and health, Liability in the case where a guarantee was assumed is equally not excluded provided such a violation of duty here included triggers our liability. Should we be responsible for violating an essential contractual duty or a “cardinal duty”, liability shall not be excluded but limited to the foreseeable damage typical for such contracts. The buyer may only assert claims from assurances or guarantees if the buyer’s alleged claims are based on information provided by us that we expressly described as an assurance or guarantee.
10. Advance payments by us for complaints not yet or not subsequently acknowledged do not signify an acknowledgement of the complaints. Reifen Gundlach GmbH reserves the right to subsequent invoicing.
11. In the case of wearing parts (e.g. tyres), the buyer must either share the costs corresponding to the actual wear or allow the derived benefits to be claimed.
12. The freight carrier must be notified of damages caused by it. The corresponding deadlines must hereby be taken into consideration. Reifen Gundlach GmbH does not recognise a return obligation for ordered goods that were delivered correctly. In the event that we take back goods as a gesture of goodwill, Reifen Gundlach GmbH reserves the right to deduct 10% from the gross invoice amount as an administration fee. In principle, Reifen Gundlach GmbH issues a credit note for returns less the delivery and storage costs incurred.
13.In the case of possible errors on lists and invoices of Reifen Gundlach GmbH, Reifen Gundlach GmbH reserves the right of claim and subsequent billing.
14. For workshop orders of Reifen Gundlach GmbH, it points out the separate workshop terms and conditions. These must be looked at in the offices of Reifen Gundlach GmbH before placing an order. For work performed at workshops, the driver of the vehicle must a satisfy himself that the work was done properly. It is pointed out that for work, where the tyres and rims are dismantled, the wheel nuts must be tightened after driving for a short time. There shall be no warranty for consequential damages, except in the case of intent or gross negligence.
15. The exclusive place of jurisdiction for both parties is Neuwied. This shall also apply for protests of cheques or bills. The buyer’s rights from this contract are not transferable. The law of the Federal Republic of Germany shall apply exclusively. 21. Should a provision of this business relationship or a provision within the framework of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected.
16. For the rest, unless otherwise stipulated, the provisions of BGB shall apply and, as far as applicable, those of HGB.
17. Place of jurisdiction is Neuwied. However, we are entitled to take legal action against the buyer at another permissible place of jurisdiction.
18. With regard to all claims and rights arising from contracts based on these terms and conditions, the non-standardised law of the Federal Republic of Germany (BGB, HGB) shall apply. The validity of the UN Convention of the International Sale of Goods is excluded.
19. Should a provision of these terms and conditions or within the framework of other agreements be invalid, the validity of the remaining provisions or agreements shall not be affected.