General Terms and Conditions of SM Motorenteile GmbH, Asperg
§ 1 Scope of application
(1) Our terms and conditions of sale and delivery shall apply exclusively; we do not accept any sale and delivery conditions from the purchaser which are contrary to our terms and conditions, unless we have explicitly agreed to them. Our terms and conditions shall apply even if we undertake delivery unconditionally while aware of contrary conditions of the purchaser or those departing from our conditions of sale.
(2) Every agreement shall be confirmed but is not subject to written confirmation. Agreements concluded by representatives or agents without the power of attorney shall only become effective upon written confirmation.
(3) Our terms and conditions of sale will also apply for any future business transactions.
(4) These terms and conditions of sale and delivery shall apply only to companies within the meaning of § 14 section 1 of the Civil Code or legal persons under public law or a statutory undertaking.
§ 2 Offers, contract conclusion, offer documentation
(1) Our offers remain un-binding until final confirmation of order.
(2) Placing an order with our company is a binding offer made by the purchaser. We have the right to accept this offer within two weeks by sending an order confirmation or by sending the ordered goods to the purchaser within this period. The timely dispatch of the order or the ordered goods is necessary to meet the deadline.
(3) In the case of cost estimates, drawings and other documents, we reserve the property rights and copyrights; they cannot be made available to third parties without our explicit consent. The technical data included in this document or other sales documentation (including data concerning weights and dimensions) and conversions of original spare part numbers of the vehicle and engine manufacturers have been carefully prepared by us, however, they may be subject to error. Such data do not include any warranties.
4) Design and shape alterations, variations in colour, as well as changes within the scope of delivery, even after the order confirmation, are subject to change, provided that the change or adjustment in light of our interests is reasonable for the purchaser. As far as we use signs or numbers to describe the order or the ordered goods, no legal liability can be derived from this fact.
§ 3 Pricing, payment terms
(1) The pricing is based on the order confirmation or otherwise on price lists valid at the time of ordering.
(2) We reserve our right to increase our prices accordingly on expiry of 6 weeks following conclusion of the contract if the following price factors are increased (especially as a result of tax increases, or increases in wages, custom duties, transportation, warehousing or material costs), proof of which will be shown to the purchaser on request. The price increases are limited by the common market prices.
(3) Unless stated in the order confirmation or otherwise in our price lists, our prices are ex works or ex warehouse, excluding packaging, freight, transportation, customs duties and the applicable sales tax.
(4) If the delivery be excluded from any sales tax, the purchaser will be obliged to provide the necessary evidence. The purchaser's VAT identification number is to be provided for deliveries within the European Union.
(5) Unless otherwise specified in the order confirmation, payment will be due immediately and without any deductions also for partial deliveries, provided they are applicable. Any deduction of discount requires special written agreement.
(6) The interest rate for late payment will be 8% p.a. above the prevailing base interest rate according to the Civil Code. The enforcement of any further claims is thereby not excluded. A deferral subsequently granted by us does not forfeit the obligation to pay interest, unless another agreement has been made.
(7) Upon completion of the contract we are entitled to cancel the contract completely or partially, or to demand full payment in advance or a security if the purchaser delays payment or fails to comply with the payment obligation due to financial problems or we become aware of an objective lack of creditworthiness, provided that it endangers our right of fulfilment or false information about creditworthiness.
(8) Bills of exchange and checks are only accepted for payment and subject to the discount eligibility by our bank; the cost of discounting and collection shall be borne by the purchaser. The date from which the interest is calculated shall be the date on which the equivalent is made available.
(9) The purchaser is entitled to an offset only when their counterclaims are legally established or recognised by us in writing.
(10) The purchaser is entitled to retention only insofar as his counterclaim is based on the same contractual relationship. In the presence of defects, the purchaser shall have the right of retention only if the delivery is obviously defective, provided the retained amount is reasonable in relation to the defects and the likely cost of remedy.
§ 4 Delivery, delivery times, delivery delay, rescission
(1) Partial deliveries are acceptable if the performance can be divided into partial deliveries without lowering the value and without compromising the performance purpose.
(2) The delivery times and dates are regarded as only approximately agreed. The delivery period begins with the provision of all required documents necessary for the fulfilment of the contract, but not before the timely and proper fulfilment of obligations connected with the delivery by the purchaser, and therefore, not before the submission of all documents, permits and approvals, which are to be obtained by the purchaser, as well as the provision of the agreed advance payment. Delivery times and deadlines are regarded as having been observed when the goods leave the factory or the warehouse until the end of the delivery period.
(3) In the event of force majeure or other unforeseeable, extraordinary circumstances which are outside of our or our supplier’s control (e.g. operational breakdowns, strikes, lockouts, acts of authorities, energy supply difficulties and delays in the delivery of essential raw materials and construction materials), the delivery time shall be extended by the duration of hindrance and a reasonable start-up time. The beginning and the end of the circumstances shall be communicated to the purchaser as soon as possible. If the delivery or service is impossible to provide or unreasonable due to these circumstances, and we are not responsible for the occurrence of these circumstances, we shall be exempt from the delivery obligation, without allowing the purchaser to claim any damages or rescission rights.
(4) In the case of exceeding the delivery times or deadlines, we shall only be in default of delivery after the expiry of the additional grace period of at least 8 days, determined by the purchaser in writing, unless the delivery time or deadline is explicitly described as "fixed" in the delivery schedule.
(5) The purchaser may seek damages for delay of performance, damages in lieu of performance or a refund of expenses in the cases of arrears for which we are responsible only in accordance with § 9 below.
(6) Except in the cases under § 8 section 4, the purchaser may cancel the contract in accordance with the statutory provisions only if we are in breach of duty.
§ 5 Delayed acceptance
(1) If the purchaser delays acceptance or infringes any other contractual obligations to co-operate, we will be entitled to demand compensation for the damage suffered by us, including any additional expenses. The enforcement of further claims remains reserved.
(2) If the requirements stipulated in paragraph 1 exist, the risk of accidental loss or accidental deterioration of the delivery item in the time shall be borne by the purchaser, at the time when the purchaser has a delay in acceptance or debt repayment.
§ 6 Risk transfer, dispatch, packaging
(1) Unless the order confirmation states otherwise, the delivery terms are ex works. The risk will be passed to the purchaser upon handover to the forwarding agent or carrier or at the time when the delivery leaves the factory or distribution centre, even if free delivery has been agreed to. The dispatch is always carried out on behalf of the purchaser.
(2) In the event of a return of the delivery item, for which we bear no responsibility, there will be no insurance cover; in this case the purchaser will bear the risk of the uninsured return of the delivered goods.
(3) Transport packaging and other types of packaging in accordance with the Packaging Ordinance may not be returned. The purchaser is obliged to dispose of the packaging at his own expense.
§ 7 Retention of ownership title
(1) The delivered goods will remain in our possession (hereinafter: conditional goods) until all claims arising from the business relationship including all outstanding balances of the purchaser’s current account will be paid in full. If we agree with the purchaser on payment by check or bill of exchange, the reservation will also extend until we honour the by us accepted bill of exchange received by the purchaser, and it will not expire upon our receipt of the check.
(2) In case of late payment or any other breach of contract by the purchaser, after the unsuccessful granting of a deadline, we will be entitled to withdraw from the contract and take back the conditional goods. After the recovery of the conditional goods we will be entitled to reutilise them; the proceeds will be booked against the purchaser’s liabilities, less the costs for reutilisation in an appropriate extent.
(3) The purchaser is obliged to treat the conditional goods carefully and adequately insure them at their own expense against fire, water and theft at replacement value; any claims against the insurance are already assigned to us by the purchaser now. If maintenance and inspection work is required, the purchaser will have to carry out such works timely and at their own expense.
(4) In case of garnishment or other interference by third parties, the purchaser shall immediately notify us in writing. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a claim under § 771 of the Code of Civil Procedure, the purchaser shall be liable for the incurred loss.
(5) The processing or transformation of the conditional goods is always done for us by the purchaser, without creating any obligations for us. If the goods are processed with other goods that are not in our possession, we will acquire joint ownership of the newly created object in the ratio of the value of the goods (final invoice amount including VAT) to the other processed items at the time of processing. Our terms for the conditional goods will further apply accordingly to the objects created by processing.
(6) If the conditional goods are mixed inseparably with other items which do not belong to us, we will acquire joint ownership of the new item in proportion to the value of the 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 purchaser's item is to be regarded as the main item, it is agreed that the purchaser assigns a pro rata co-ownership to us. The purchaser will hold the sole or joint ownership for us.
(7) The purchaser will be entitled to sell the conditional goods further in the ordinary course of business, however, the purchaser will already at that time assign any claims against their recipients or third parties resulting from the resale of the goods at the amount of the invoice total, including VAT to us, regardless of whether the conditional goods have been sold without or after processing or mixing. The purchaser shall remain authorised to collect this account receivable even after the assignment. Our authority to collect the claim ourselves shall remain unaffected, however we undertake not to collect the debt as long as the purchaser meets his payment obligations and is not in default of payment, and in particular, has not filed for insolvency proceedings or suspension of payments. Should this be the case, we may ask the purchaser to disclose the assigned accounts receivable and the debtors, provide all necessary details for collection, hand over the associated documents and immediately inform the debtors or third parties of the assignment. The purchaser shall not be entitled to pledge or assign the conditional goods as security.
(8) We undertake to release the securities to which we are entitled at the request of the purchaser, provided that the realisable value of our securities exceeds the secured claims by more than 20%; the selection of released securities shall be at our discretion.
§ 8 Defects liability
(1) The defects liability implies that the purchaser examines the consignment immediately upon receipt for any possible defects and timely submits a complaint in writing. The complaint is regarded as timely if it is received by us within two weeks from delivery or, in case of hidden defects, from discovery of such defects. The legally due examination and notification obligation of merchants under § 377 shall remain unaffected.
(2) The warranty shall not be effective in the case of only minor deviations from the agreed quality or a minor impairment of usefulness.
(3) If the delivered goods contain a defect, the cause of which already existed at the time of risk transfer, the purchaser will be entitled, depending on our choice to supplementary performance by remedying the defects or delivery of a new defect-free item. The necessary expenses, in particular labour, materials, transport and infrastructure costs shall be incurred by us, provided that such expenses are not increased by the fact that the item was subsequently transported to a place other than the one specified in the order confirmation. We may refuse to remedy the defects, as long as the purchaser's payment obligations towards us are not fulfilled with regards to the fault-free part of the provided service.
(4) If the remedy is at least twice unsuccessful, the purchaser may use their option to withdraw from the contract or demand an appropriate discount (price reduction); they can only claim damages in accordance with the following § 9.
(5) Recourse claims of the purchaser against us, pursuant to § 478 of the Civil Code, shall be limited to cases in which the purchaser has made appropriate further arrangements with their recipient concerning legal warranty claims.
§ 9 Claims for damages and expenses
(1) Unless stated otherwise above, any claims for damages or expenses by the purchaser on whatever legal grounds are excluded subject to section 2. This applies even if the purchaser requests compensation for useless expenses instead of a claim for damages.
(2) The limitations of liability according to the preceding paragraph 1 shall not apply in the case of infringement of essential contractual obligations, the fulfilment of which will only enable the proper execution of the contract, and on the fulfilment of which the purchaser can rely, if the damage is caused by intent or gross negligence including intent or gross negligence of our representatives or agents, whereby the liability for gross negligence is limited to foreseeable damages, which might typically occur under the contract, in the case of damages resulting from danger to life, bodily injury and health impairment, as far as the material defect has been fraudulently concealed or by way of an exception, a warranty as to properties, or durability in accordance with § 443 Civil Code has been given in writing, in cases of mandatory liability under the Product Liability Act.
(3) The purchaser's entitlement to a refund of expenses is limited up to the value of interest he has in discharge of contract.
(4) Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, agents, co-workers, representatives and auxiliary personnel.
?§ 10 Limitation period
(1) Warranty claims will lapse 12 months after risk transfer, unless longer periods are prescribed by law. Regarding replacements and repairs, we shall bear liability until the applicable limitation period of the original item expires.
(2) Claims for damages, which the purchaser my suffer with or in connection with the delivery of goods shall be limited to 12 months after the damage is revealed or not revealed due to gross negligence of the damage and the person causing the damage and regardless of knowledge or lack of knowledge due to gross negligence within 5 years from their occurrence. In the case of § 9 paragraph 2, the statutory periods will remain in force.
§ 11 Patent Protection
(1) The purchaser shall assume the liability for infringement of copyrights and other intellectual property rights of third parties for products which are manufactured according to drawings, templates or other information from the purchaser, and he shall indemnify us against such claims by third parties.
(2) Our drawings, templates and designs shall remain our property and may only be transferred to third parties for viewing and upon our written approval. The same applies to tools and devices, even if the purchaser has paid prorated production cost. We undertake to keep moulds and devices for repeat orders. The retention period expires, if within 2 years after the last delivery, no further orders have been received from the purchaser; it shall expire immediately if the purchaser fails to pay or delays payment for goods delivered to him.
§ 12 Place of performance, jurisdiction, applicable law
(1) The place of performance of delivery shall be our factory or dispatch warehouse. The place of delivery in terms of payment shall be our registered office.
(2) The place of jurisdiction is our registered office. However, we shall be entitled to sue the purchaser at any other place of jurisdiction.
(3) The law of the Federal Republic of Germany shall be applicable. If the purchaser has their branch outside of Germany in accordance with Art. 10 CISG, the applicable law shall be the UN Global Sales Law (CISG) in addition to the contractual arrangements and to our general conditions of sale and delivery, and apply with priority over other statutory provisions of German law. Current as of 30 August 2011