General Terms and Conditions of Sale, Delivery and Payment
1. General
1.1 The following terms and conditions shall apply to our deliveries of goods and our other services such as assembly (including ancillary services like e.g. proposals and consultancy).
1.2 Customer's general terms and conditions of business shall be excluded unless we have acknowledged them in writing.
1.3 Our quotations are subject to change, supply contracts and all other agreements (including subsidiary agreements) as well as declarations made by our representatives shall not be legally binding upon us until confirmed by us in writing.
1.4 Commercial mail (e.g. order acknowledgments, invoices, credit advices, account statements, payment reminders) printed out on data processing equipment shall be legally binding even without signature.
2. Prices
2.1 Our prices are exclusive of packaging and value added tax at the applicable legal rate. Prices are ex works or stock.
2.2 If changes in the price basis occur until the delivery date, we reserve the right to adjust our prices accordingly. However, this shall apply only to delivery times of more than 4 months and to price adjustments up to 10%. In the case of higher rates a fresh price agreement shall be necessary. If such an agreement does not come about, we shall be entitled to rescind the contract within 14 days by giving written notification.
2.3 Orders for which no prices are agreed shall be subject to our prices valid on the date of delivery.
2.4 Confirmed prices shall apply only upon purchase of the confirmed quantities.
2.5 Partial shipments shall be charged for separately unless explicitly agreed otherwise.
3. Payment Terms and Conditions
3.1 Our invoices shall be due immediately after receipt by customer and are payable in full. Payments shall not be considered as made until the day when we have access to the funds..
3.2 Bills of exchange shall be accepted only based upon explicit agreement and – like cheques – only on account of payment and subject to our consent in the particular case. Discount and other charges shall be defrayed by customer and shall be due for payment immediately.
3.3 All payments, regardless of any other dispositions by customer, shall always be offset first against interest and costs and then against our oldest accounts receivable.
3.4 In the case of default of payment we shall charge default interest at a rate of 5 percentage points above the legal base interest rate. Further recovery action shall not be ruled out.
In the case of payment default, failure to honour cheques or bills of exchange, suspension of payments, institution of debt settlement proceedings, non-compliance with payment terms and conditions or in the presence of circumstances conducive to diminishing customer's creditworthiness, all of our outstanding accounts – including in cases of respite – shall become due immediately.
Furthermore, we shall be entitled to make any shipments still outstanding only against cash prepayment or after fixing a reasonable period of grace to cancel the contract and demand damages in lieu of performance.
Customer may only offset against claims that have been established as undisputed or valid in law.
4. Retention of Title
4.1 Our shipments shall be made exclusively subject to retention of title. Title shall not pass to customer until customer has discharged all liabilities from our deliveries of goods. In the case of a current account the retained title shall serve as security for our balance claim and this shall equally apply if payments are made on specifically designated accounts receivable.
4.2 Processing and conversion of goods delivered by us and still in our ownership shall always take place by our order without our incurring any liabilities therefrom. If the goods supplied by us are mixed or combined with other objects, customer shall assign to us title to the resulting article in the proportion of the invoice value of our retained goods to the invoice value of the other goods used
4.3 Customer may sell the supplied goods or use them (e.g. under a work and services or work and material supply contract) only in the regular course of business and only if its client has not precluded assignment of the debt arising from resale or further use. Customer shall be obliged to ensure that its client gives reserved consent to any assignment to us in the required form. Customer shall not be permitted to assign the retained goods as security or to pledge them.
4.4 Customer must notify us without delay about any distraint, including impending distraint, or any other encroachment upon our title by third parties and must confirm our title in writing both to third parties and ourselves. In the case of distraints we must be sent a copy of the distraint report.
4.5 If customer defaults, we shall be entitled to demand surrender of the retained goods and to take direct possession of them ourselves or through authorized agents, regardless where they are located. Customer shall be obliged to surrender the retained goods to us and to supply us with the information and hand over the documentation necessary to enforce our rights. The demand to surrender the goods shall not be deemed as a cancellation of the contract. The same shall apply to the taking back of the retained goods.
4.6 As security for all of our claims, including future claims, from the business relationship, customer shall assign to us as of now all receivables together with ancillary rights that accrue to customer from the resale and other use of the retained goods (e.g. combination, conversion, installation in a building).
4.7 If the sale or other use of our retained goods – regardless in what condition – takes place together with the sale or other use of objects to which third party rights attach and/or in connection with the rendering of services by third parties, then the advance assignment shall be confined to the billing value of our invoices.
4.8 Customer shall be entitled to collect receivables that are assigned to us. In the case of payment default, suspension of payments, filing or opening of insolvency or voluntary composition proceedings or other financial collapse on customer's part, we may revoke the collection authorization. Customer must disclose to us the assigned receivables and the related debtors upon request, supply all information necessary to enable collection, hand over the relevant documentation and notify the debtor of the assignment. We shall additionally be entitled to notify customer's debtors of the assignment and request them to make payment to us.
4.9 Should the realizable value of the securities to which we are entitled according to the aforementioned provisions exceed the value of our debt claims by more than 10%, we shall be obliged at customer's request to release surplus securities at our discretion.
5. Delivery
5.1 Delivery shall be ex works or ex stock for customer's account freight forward, provided the place of use is on all-weather roads accessible to heavy goods vehicles.
5.2 Shipping route, transportation and packaging shall be left to our discretion. Transport risk shall be borne by customer in all cases, i.e. risk shall pass to purchaser upon dispatch of the goods ex works, including in cases where delivery freight paid has been agreed. If shipping is delayed through fault of purchaser, then risk shall pass to purchaser beginning from the date of readiness for shipment.
5.3 Any damage and losses must be certified by the haulage contractor on the consignment note immediately upon receipt of the goods and claims must be lodged.
6. Delivery Time and Delivery Impediments
6.1 Stated delivery times shall apply only approximately and shall be subject to written agreement. Delivery periods shall begin on the date of our order acknowledgment but not before clarification of all procedural details and any other prerequisites to be created by customer for proper completion of the contract. The same shall apply to delivery dates. Early deliveries and part deliveries shall be allowable. The date of dispatch ex works or stock shall be considered as the delivery date.
6.2 If customer breaches its duties of cooperation (e.g. by failing to call off shipments in due time or refusing acceptance), we shall be entitled, after fixing a period of grace without effect, to take the necessary measures ourselves and deliver the goods or to cancel the part of the supply contract still uncompleted. This shall not affect our right to demand damages for breach of duty or damages in lieu of performance.
6.3 Acts of force majeure shall appropriately prolong the delivery time and shall entitle us to rescind the contract wholly or in part. Considered as force majeure shall be strikes, lockouts, business disruptions or other unforeseen circumstances for which we are not responsible and which significantly impede delivery or render delivery impossible for us. This shall equally apply if the stated circumstances arise during default or in regard to a subcontractor.
6.4 An overstepping of the period or of an agreed date shall entitle customer to request a declaration from us within two weeks as to whether we intend to rescind or deliver within a reasonable period of grace. If we make no declaration, customer may cancel the contract if fulfilment is of no interest to customer.
6.5 If acceptance fails to take place or does not occur in due time or in full, we shall be entitled to store or ship the goods at customer's expense and risk; thereupon the goods shall be considered as accepted.
7. Taking Back
Taking back of material from our shipments shall be fundamentally precluded.
8. Warranty Claims
8.1 The supplied article shall be free from quality defects if it conforms to the product description or – in the absence of a product description – to the current state of the art. The right to make changes in the design and/or workmanship that impair neither the serviceability nor the value of the supplied article shall remain reserved and such changes shall not qualify for a deficiency claim. In the case of defects that do not prejudice or only insignificantly prejudice the value and/or fitness for use of the supplied article, no warranty claims shall exist.
8.2 Guarantees of the quality and durability of the supplied article shall be deemed as undertaken only if we have declared the guarantee as such explicitly and in writing. Our engine, tuning and other accessories are predominantly supplied without TÜV technical approval certification and are intended only for racing purposes. Admissibility for their use on public roads is not part of the contractual quality.
8.3 Deficiency claims must be raised without delay and shall be precluded if they have not reached us within 2 weeks of receipt of the shipment. Defects that could not be detected within this period despite meticulous examination must be reported to us without delay but not later than 2 weeks after their discovery.
8.4 If the supplied article is defective or fails to conform to a guaranteed quality, we shall remedy the defect either by rectification or replacement with a defect-free item at our discretion within a reasonable time free of charge (subsequent fulfilment). Customer must afford us or our authorized agents the time and opportunity to do so. Failing this, or if changes or repairs are made to the faulty article, we shall be exempted from liability for defects in this respect.
8.5 If subsequent fulfilment fails or fails to take place within a reasonable period of grace fixed for us by customer, then customer may demand a reduction in payment or may rescind the contract.
8.6 Claims by customer for expenditure, especially transport, travel, labour and material costs, necessary for purposes of reversal after cancellation of the contract (section 8.5) shall be ruled out.
8.7 Damage occurring due to incorrect or faulty installation, commissioning, handling, operation or maintenance or through use of inappropriate or different control equipment from that specified shall not constitute grounds for warranty claims. In particular, all warranty entitlement of customer shall lapse if the installation guide enclosed with the goods is not followed exactly.
In the case of contract work to customer's specification we shall give warranty only for properly executed workmanship. The risk of technically related functional or durability defects shall be borne by customer.
8.8 In respect of customers who are not consumers a 1-year period shall apply for the limitation of warranty claims. It shall commence on the date of delivery by us. The statutory periods of limitation shall apply in the case of injury to life, limb or health and where there is a wilful or grossly negligent breach of duty on our part and in the case of fraudulent nondisclosure of a defect or upon the giving of a quality guarantee.
8.9 Section 9 shall apply furthermore to claims for damages. More extensive customer claims for defects shall be ruled out.
8.11 In cases where upon customer's special request we have undertaken planning assistance in addition to our supply commitment, we shall be liable for such only to the extent of rectifying or re-supplying at our discretion any of our planning assistance that is proven to be faulty. All liability beyond this for planning assistance shall be ruled out unless we are liable pursuant to section 9.
9. Liability
9.1 With respect to damages and restitution of wasted expenditure (§ 284 BGB German Civil Code) for breach of contractual or noncontractual obligations (e.g. due to default or tort) we shall be liable only
- in the case of wilfulness or gross negligence,
- on account of culpable injury to life, limb or health,
- on account of fraudulent nondisclosure of a defect or giving of a quality guarantee, or
- pursuant to the product liability act, for personal injury or material damage to privately used objects.
9.2 Additionally we shall be liable for breach of essential contractual obligations in the case of ordinary negligence as well. In this case, however, our liability shall be limited to the loss typical for this kind of contract that was reasonably foreseeable at the time of closing the contract.
9.3 Any contract penalty provisions of a customer in customer's general terms and conditions of business shall not be accepted and shall therefore not constitute a part of the contract.
9.4 The above provisions shall apply in equal measure to our vicarious agents and officers.
9.5 No change in the burden of proof to the detriment of customer is associated with the above provisions.
10. Legal Venue
The legal venue shall be Leverkusen provided customer is a merchant. However, we shall be at liberty to resort to the competent court at customer's domicile.
11. Severability
If any provision in these General Terms and Conditions of Sale, Delivery and Payment or any provision under other agreements between customer and ourselves is or becomes ineffective, this shall not affect the effectiveness of any other provisions or agreements.
Furthermore the law of the German Federal Republic shall apply exclusively unless otherwise agreed.