GTC

General Terms and Conditions of SM Motorenteile GmbH, Asperg
§ 1 Scope of application

(1) Our Terms and Conditions of Sale and Delivery apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale and Delivery unless we have expressly agreed to their validity. Our Terms and Conditions of Sale and Delivery shall also apply if we carry out the delivery without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our Terms and Conditions of Sale and Delivery.

(2) All agreements shall be confirmed in writing. Their effectiveness is not dependent on this. Agreements concluded by representatives without power of representation or auxiliary persons shall only become effective after written confirmation.

(3) Our Terms and Conditions of Sale shall also apply to all future transactions.

(4) These Terms and Conditions of Sale and Delivery shall only apply to entrepreneurs pursuant to Section 14 (1) of the German Civil Code (BGB) or legal entities under public law or a special fund under public law.

§ 2 Offer, conclusion of contract, offer documents

(1) Our offers are non-binding until the final order confirmation.

(2) The order placed with us is a binding offer by the customer. We are entitled to accept this offer within 2 weeks by sending an order confirmation or to send the ordered delivery to the customer within this period. The timely dispatch of the order confirmation or the ordered goods shall suffice to meet the deadline.

(3) We reserve the property rights and copyrights to cost estimates, drawings and other documents; they may not be made accessible to third parties without our express consent. The technical data contained in these or our other sales documents (including weights and dimensions) and conversions of the original spare part numbers of the vehicle and engine manufacturers have been carefully prepared by us, errors excepted. Such information does not constitute a guarantee.

(4) We reserve the right to make changes to the design and shape, deviations in color and changes to the scope of delivery even after the order confirmation, provided that the change or deviation is reasonable for the customer, taking into account our interests. Insofar as we use symbols or numbers to designate the order or ordered goods, no rights can be derived from this.

§ 3 Prices, terms of payment

(1) The price is stated in the order confirmation or otherwise in our price lists valid at the time of the order.

(2) We reserve the right to increase our prices accordingly after 6 weeks if increases in price factors occur after conclusion of the contract (in particular due to tax increases or increases in wages, customs duties, transport, storage or material prices), which we will prove to the customer on request. The price increases are limited by the usual prices on the market.

(3) Unless otherwise stated in the order confirmation or our price lists, our prices are ex works or ex warehouse, but excluding packaging, freight, transportation, customs duties and the applicable statutory value added tax.

(4) Insofar as a VAT-free delivery is considered, the customer is obliged to provide the necessary evidence. For deliveries within the European Union, the customer must provide his VAT ID number.

(5) Unless otherwise stated in the order confirmation, the purchase price shall be due for payment immediately and without any deduction, even in the case of partial deliveries, insofar as these are permissible. The deduction of a discount requires a special written agreement.

(6) Interest on arrears shall be charged at 8 percentage points p.a. above the respective base interest rate according to the German Civil Code (BGB). This shall not exclude the assertion of further damages. Unless otherwise agreed, any deferment of payment subsequently granted by us shall not affect the obligation to pay interest.

(7) After conclusion of the contract, we shall be entitled to withdraw from the contract in whole or in part or to demand full advance payment or security if the customer defaults on payment of the purchase price or fails to meet his payment obligation due to financial collapse or if we become aware of an objective lack of creditworthiness, provided that this jeopardizes our claim to performance or false information about creditworthiness.

(8) Bills of exchange and checks shall only be accepted on account of payment and subject to discountability at our bank; the costs of discounting and collection shall be borne by the customer. The value date shall be the day on which the equivalent value is available.

(9) The customer shall only be entitled to offset if his counterclaims have been legally established or recognized by us in writing.

(10) The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship. In the event of defects, the customer shall only be entitled to a right of retention if the delivery is obviously defective, provided that the amount retained is in reasonable proportion to the defects and the anticipated costs of subsequent performance.

§ 4 Delivery, delivery time, delay in delivery, withdrawal

(1) Partial deliveries are permissible if the service can be broken down into partial deliveries without any reduction in value and without impairing the purpose of the service.

(2) The delivery times and dates are only approximate. The delivery period begins with the clarification of all documents required for the fulfillment of the contract, but not before the timely and proper fulfillment of the obligations to be fulfilled by the customer prior to delivery, in particular not before the provision of the documents, approvals and releases to be procured by the customer and the payment of agreed advance payments. Delivery times and dates shall be deemed to have been met if the goods have left the factory or the distribution warehouse by the end of the delivery period.

(3) In the event of force majeure or other unforeseeable, extraordinary circumstances for which we and our suppliers are not responsible (e.g. operational disruptions, strikes, lockouts, official interventions, energy supply difficulties and delays in the delivery of essential raw and construction materials), the delivery period shall be extended by the duration of the hindrance and a reasonable start-up period. We shall inform the customer of the beginning and end of the circumstances as soon as possible. If the delivery or service becomes impossible or unreasonable due to the aforementioned circumstances and if we are not responsible for these circumstances, we shall be released from the delivery obligation without the customer being able to derive any claims for damages or rights of withdrawal from this.

(4) If delivery times or deadlines are exceeded, we shall only be in default of delivery if a reasonable grace period of at least 8 working days set by the customer in writing after the deadline has been exceeded has expired, unless the delivery time or deadline is expressly designated as "fixed" in the order confirmation.

(5) Even in the event of a delay in delivery for which we are responsible, the customer may only demand compensation for damages and reimbursement of expenses in accordance with § 9 below.

(6) Except in the cases of § 8 (4) below, the customer may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the breach of duty.

§ 5 Default of acceptance

(1) If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us as a result, including any additional expenses. We reserve the right to assert further claims.

(2) Insofar as the requirements of paragraph 1 are met, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.

§ 6 Transfer of risk, shipping, packaging

(1) Unless otherwise stated in the order confirmation, delivery ex works is agreed. The risk shall pass to the customer when the goods are handed over to the forwarding agent or carrier, at the latest when they leave the factory or the delivery warehouse, even if carriage paid delivery has been agreed. Shipment shall always be made on behalf of the customer.

(2) In the event of a return of the delivery item for which we are not responsible, there is no insurance cover on our part; in this case, the customer bears the risk of the uninsured return of the delivery item.

(3) Transport packaging and all other packaging in accordance with the Packaging Ordinance will not be taken back. The customer is obliged to dispose of the packaging at his own expense.

§ 7 Retention of title

(1) The delivered goods shall remain our property until full payment of all claims arising from the business relationship, including all balance claims from a current account relationship with the customer (hereinafter: reserved goods). Insofar as we agree payment of the purchase price with the customer on the basis of the check or bill of exchange procedure, the reservation shall also extend to the redemption of the bill of exchange accepted by us by the customer and shall not expire when the check received is credited to us.

(2) In the event of default in payment or other conduct by the customer in breach of contract, we shall be entitled, after setting a deadline to no avail, to declare our withdrawal from the contract and take back the goods subject to retention of title. After taking back the goods subject to retention of title, we shall be entitled to realize them; the proceeds of realization, less reasonable realization costs, shall be set off against the customer's liabilities.

(3) The customer is obliged to handle the reserved goods conscientiously and to insure them sufficiently at his own expense against fire, water damage and theft at replacement value; the customer hereby assigns to us any claims against the insurance company. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

(4) In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.

(5) The processing or transformation of the reserved goods by the customer shall always be carried out on our behalf without any obligations arising for us. If the reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the newly created item in the ratio of the value of the reserved goods (final invoice amount, including VAT) to the other processed items at the time of processing. Our agreements for the goods subject to retention of title shall apply accordingly to the item created by processing.

(6) If the reserved goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the sole or co-ownership thus created on our behalf.

(7) The customer is entitled to resell the reserved goods in the ordinary course of business, but hereby assigns to us all claims against his customers or third parties arising from the resale of the reserved goods in the amount of the final invoice amount including VAT, irrespective of whether the reserved goods were resold without or after processing or mixing. The customer shall remain authorized to collect this claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this; however, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. In such cases, we may demand that the customer informs us of the assigned claims and their debtors and provides all information necessary for collection, hands over the relevant documents and informs the debtor or third party of the assignment. The customer is not permitted to pledge the goods subject to retention of title or assign them as security.

(8) We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 20%; we shall be responsible for selecting the securities to be released.

§ 8 Material defects and defects of title

(1) The customer's claims for defects presuppose that the customer inspects the delivery item for defects immediately after receipt and notifies us of these in writing in good time. The complaint shall be deemed to have been made in good time if it is received by us within 2 weeks of delivery or, in the case of hidden defects, of discovery. The statutory obligation of merchants to inspect and give notice of defects in accordance with § 377 HGB remains unaffected by this.

(2) Claims for defects shall not exist in the event of only insignificant deviations from the agreed quality or only insignificant impairments of usability.

(3) Insofar as there is a defect in the delivery item, the cause of which already existed at the time of the transfer of risk, the customer shall be entitled, at our discretion, to subsequent performance by rectification of the defect or delivery of a new item free of defects. We shall only bear the expenses necessary for this, such as in particular labor, material, transport and travel costs, insofar as these expenses are not increased by the fact that the delivery item was subsequently taken to a place other than the place of delivery specified in the order confirmation. We may refuse subsequent performance as long as the customer does not fulfill his payment obligations to us to an extent that corresponds to the defect-free part of the service provided.

(4) If the subsequent performance fails at least twice, the customer is entitled, at his discretion, to withdraw from the contract or to demand a corresponding reduction of the purchase price (reduction); he can only demand compensation in accordance with § 9 below.

(5) The customer shall only have rights of recourse against us in accordance with § 478 BGB insofar as the customer has made agreements with his customer that go beyond the statutory warranty claims for defects.

§ 9 Claims for damages and reimbursement of expenses

(1) Unless otherwise stipulated above, our liability for damages is excluded regardless of the legal nature of the asserted claim, subject to para. 2. This shall also apply if the customer demands compensation for useless expenses instead of a claim for damages in lieu of performance.

(2) The limitations of liability pursuant to the above para. 1 shall not apply in the event of breaches of material contractual obligations, the fulfillment of which is essential for the proper execution of the contract and on the fulfillment of which the customer may rely, insofar as the cause of the damage is based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents, whereby compensation in the case of gross negligence is limited to the foreseeable damage typical of the contract, in the case of damage arising from injury to life, body and health, insofar as the defect was fraudulently concealed or a guarantee of quality or durability was given in writing in accordance with § 433 BGB, in cases of mandatory liability under the Product Liability Act.

(3) Claims for reimbursement of expenses by the customer are limited to the amount of the interest which the customer has in the fulfillment of the contract.

(4) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and auxiliary persons.

§ 10 Statute of limitations

(1) Claims for defects shall become statute-barred 12 months after the transfer of risk, unless longer periods are prescribed by law. We shall be liable for replacement deliveries and repairs until the expiry of the limitation period applicable to the original delivery item.

(2) Claims for damages incurred by the customer on the occasion of or in connection with the delivery of the goods shall become statute-barred 12 months after knowledge or grossly negligent ignorance of the damage and the person causing the damage and, irrespective of knowledge or grossly negligent ignorance, 5 years after their occurrence. In the cases of § 9 para. 2, the statutory periods shall apply.

§ 11 Patent protection

(1) For goods manufactured according to drawings, samples or other specifications of the customer, the customer shall assume liability in the event of infringement of patent and other industrial property rights of third parties and shall indemnify us against such claims of third parties.

(2) Our drawings, samples and models shall remain our property and may only be made available to third parties for inspection and with our written consent, as well as tools and equipment, even if the customer has paid a proportion of the manufacturing costs. We undertake to keep molds and equipment for repeat orders. The retention period shall expire if no further orders are received from the customer within 2 years of the last delivery; it shall expire immediately if the customer does not pay for the goods delivered to him or does not pay on time.

§ 12 Place of performance, place of jurisdiction, choice of law

(1) The place of performance for the delivery is our factory or distribution center. The place of performance for payment is our registered office.

(2) The place of jurisdiction is our registered office. However, we remain entitled to sue the customer at any other legal place of jurisdiction.

(3) The law of the Federal Republic of Germany shall apply. If the customer does not have its place of business in Germany pursuant to Art. 10 CISG, the uniform UN Convention on Contracts for the International Sale of Goods (CISG) shall apply in addition to the contractual agreements and our General Terms and Conditions of Sale and Delivery with priority over the other statutory provisions of German law.

§ 13 Export control

1. compliance with sanctions regulations
The contracting party warrants that it complies with all applicable national and international sanctions regulations and laws, including the relevant sanctions lists, in relation to the performance of this contract. In particular, the contractual partner assures that neither it nor its affiliated companies or employees are listed on relevant sanctions lists and that no sanctions have been imposed on the contractual partner, its employees or other relevant parties. The contractual partner undertakes to take all necessary measures to ensure that all parties involved comply with the relevant legal requirements in relation to sanctions at all times.

2. Delivery Subject to Conditions
Our deliveries are subject to the proviso that they do not violate national or international export regulations, embargoes or sanctions. If delivery is not possible due to such regulations or sanctions, we reserve the right to refuse delivery or to terminate the contract.

3. Compliance with Export Regulations
The purchaser is obliged to comply with the (re-)export regulations of the Federal Republic of Germany and the European Union. This applies in particular in the event of the sale, export or re-export of our goods. The customer shall ensure that all necessary permits for (re-)export are obtained and shall assume responsibility for compliance with these regulations.