I. Delivery
1. Our offers are subject to changes. Delivery, performance and accounting are effected at the prices and under the conditions most recently announced by us before shipment or collection of the goods. Unpredictable raw materials, wages, energy and other costs changes entitle us to adjust prices accordingly. The costs of shipment shall be borne by the ordering party.
2. Unless otherwise agreed, the goods are dispatched at the risk of the recipient, irrespective of the place of shipment.
3. In cases of force majeure and other disruptive events occurring with us, our suppliers or transport companies, such as operational or traffic disruptions, fire, flood, labour, energy or raw materials shortage, strikes, lockouts, official measures, we are exempted from the obligation to make deliveries and provide services in due time. If we, our legal representatives or executives are guilty of intent or gross negligence, we are liable under the statutory provisions. For damages based on slight negligence, all liability is excluded (unless it is a foreseeable typical damage arising from breach of essential contractual obligations). This does not affect a statutory withdrawal right of the purchaser, provided that the condition is met. In the event of orders with performance consisting of more than one delivery, the non-fulfilment, deficient or late fulfilment of one delivery shall have no effect on other deliveries of the customer.
4. It is generally not possible to return sold goods. Insofar as an exception is made and the product is returned, the net price valid at the time of return shall be credited. If the net price as at the day of the delivery is below the net price as at the day of return, the net price as at the day of delivery minus a value deduction shall be credited. Section II Subsection 3 shall also apply in cases when the retention of title is exercised.
5. The registration of an insolvency proceeding, submission of the affidavit pursuant to § 807 ZPO [Zivilprozessordnung - German Civil Practice Act], shortage of liquid funds or the knowledge of a considerable deterioration in the financial circumstances of the ordering party shall entitle us to suspend deliveries immediately, to refuse the fulfilment of current contracts or to demand payment in advance.
II. Retention of title and security rights
1. We shall reserve the ownership of all and any goods delivered until all existing claims against the ordering party, including conditional claims, have been satisfied. This also applies to any claims arising in the future.
2. In order to assert our retention of title, we are entitled to demand the immediate return of the reserved goods under exclusion of any right of retention, unless there are legally ascertained or undisputed counter-claims. If the ordering party should not comply with this requirement, we or the persons authorised by us are entitled to enter the premises of the purchaser in order to obtain the immediate possession of the goods. In this case, the ordering party is obliged to provide the information about the location of the product and insofar as necessary, to grant the insight in its business documents.
3. Without prejudice to the payment obligation of the customer we are entitled to sell the repossessed goods and to credit the proceeds, or to credit the price calculated by us (contractual price) minus discount, deductions and other reductions and less any depreciation. In all cases, we are also entitled to deduct the costs incurred during repossession of the product from the amount to be credited.
4. The ordering party shall inform us immediately of a seizure or any other infringement of our ownership rights by a third party and the ownership rights must be confirmed in writing vis-à-vis us as well as vis-à-vis the third party. Pledging or transfer of title of the goods delivered under reservation of ownership is prohibited to the ordering party.
5. The ordering party shall insure the products sufficiently against fire and theft. Claims against the insurance company from damage claim resulting from a conditional commodity are hereby already assigned to us in the amount of the value of the conditional commodity. The ordering party must inform us and the insurance company immediately of the claim assignment.
6. Any acquisition by the ordering party of the right of title for the goods as per § 950 BGB [Bürgerliches Gesetzbuch - German Civil Code] in the event of processing the said goods into a new object is excluded. Any processing shall be performed by the ordering party on behalf of us, without any obligations arising for us as a result. The treated or processed goods are considered reserved goods in the sense of these provisions. In the event of any connecting, commingling or mixing with other goods which do not belong to us (§§ 947, 948 of BGB), we are entitled to the co-ownership share of the new product in the ratio of the value of the reserved goods to the rest of the processed goods at the time of the connecting, commingling or mixing. If the purchaser acquires sole ownership of the new product, the parties to the contract are in agreement that the purchaser grants us co-ownership of the new product in the ratio of the value of the processed and/or connected, commingled or mixed reserved goods and stores these for us without charge. The new products obtained in this way are considered reserved goods in the sense of these provisions. The ordering party shall then store them with the due diligence of a prudent businessman on behalf of us and undertakes to provide us with the information required to exercise its rights and grant us access to its documents in this respect.
7. The demands of the purchaser from the resale of the reserved goods are hereby assigned to us along with all ancillary rights, regardless of whether the reserved goods are sold prior or after processing, combining or mixing and whether they are sold to one or several buyers. If the assigned claim against a third-party debtor is included in a current account, then the transfer of claims agreed upon shall be extended to the claim from the checking account up to the amount of the value of our claim. The assigned claims serve to secure all our rights and claims as per II./1.
8. In the event that the goods subject to retention of title are sold by the Ordering Party together with other goods that do not belong to us, whether prior to or after processing, combining or mixing, the assignment of the purchase price claim as per II/7 shall apply to the contractual value of the goods subject to retention of title . Furthermore, it is considered as agreed that a demand in the amount of 10% of our purchase price is assigned in addition to the aforementioned resale price, which will be charged upon the receipt of the amount with interests and costs, where the unused excess amount shall be refunded. If the ordering party should render a service associated with the sale of the goods subject to retention and if no differentiation is made in the invoice issued by the customer between the goods subject to retention and the service, i.e. if the customer issue an invoice in the total amount, it must surrender it to use in the amount of our contractual price.
9. If the retained goods are used by the ordering party to fulfil a contract for work and materials, the receivables from the contract for work and materials shall be assigned proportionately to us in advance, as described in II/7 and 8.
10. The ordering party is entitled and authorised to sell on or use in any other manner the goods subject to the retention of title only on condition that the accounts receivable referred to under II/7-9 are transferred to us and that the copies of its invoices, bills of delivery and other documents contain the name of our product. The ordering party shall not be entitled to any other disposals of the goods subject to retention of title without our prior consent.
11. The ordering party is authorised to collect the receivables from the resale despite the assignment. Our collection authority remains unaffected by the collection authorisation of the ordering party. We shall not collect debt claims ourselves as long as the ordering party duly fulfils his payment obligations. He must inform us of the debtor of the assigned claims if requested by us, as well as inform the debtors of the assignment. We and our authorised representatives shall be entitled to enter the premises of the ordering party in order to inspect the documents necessary for assessment and asserting the claims assigned to us, to take them for a short while or to copy them.
12. We are entitled to revoke the right of the ordering party to resell the reserved goods and to collect the claims assigned to us with immediate effect if the ordering party should come into default or is in financial difficulties due to a significant deterioration of financial circumstances. If an application is made for the opening of insolvency proceedings against the property of the ordering party or if the ordering party should suspend the payment, if he submitted an affidavit in accordance with §807 ZPO or if a change in the ownership of the company of the ordering party occurs in connection with payment difficulties, the authority to resell the reserved goods and to collect the claims assigned to us shall become void.
13. If we revoke the authorisation of the ordering party to resell the reserved goods or it becomes void by itself, the ordering party is obliged to immediately hand over the reserved goods to our immediate possession, either by handing the goods directly to us or to a representative appointed by us. In this regard, we and our authorised representatives shall be entitled to enter the premises of the ordering party. The ordering party is also obliged to grant us the right to inspect his business records, unless the ordering party provides us with extensive information immediately. All of the costs incurred as a result of repossessing the goods subject to the retention of title shall be borne by the ordering party.
14. The retention of title in accordance with the foregoing provisions shall also continue if individual claims are included in a current account and the balance has been drawn and accepted. The retention of title in accordance with the above conditions shall become void if all the demands listed above under II/1 have been fulfilled. The ownership shall then be transferred to the ordering party and he shall be entitled to the assigned claims.
15. If the value of all securities existing for our benefit exceeds the existing sustaining demands by more than 20 %, we will release the securities of our choice upon the request of the ordering party.
III. Payment
1. Our invoices become due immediately upon receipt, without any deductions, free of postage and charges.
2. Discounts are only granted after prior agreement if all payment obligations from earlier deliveries have been fulfilled and the invoice amount has been paid to us or credited to our account in due time before the due date. Bills of exchange do not allow for granting of any discount. In case of cashless payment, in particular cheque payments, the time at which the amount is credited shall be decisive in any case. In case of payments or credits under usual reserve, under one condition or under other restrictions, the discount canno be granted. The risk of the payment method shall be borne by the ordering party.
3. Bills of exchange and cheques are credited only under reservation of the correct receipt of the full amount. We reserve the acceptance of own or other acceptances. Costs and discount expenses are payable by the ordering party. We do not accept guarantee for presentation or protest. Lodging of protest of the customer’s own bills of exchange or lack of immediate provision for protested bills of exchange of third parties give us the right to return all still pending bills of exchange. All our claims shall become due for payment at the same time. Antedated checks shall not be accepted.
4. If payments deadlines or other stipulated payments deadlines defined in III/1 are exceeded, the ordering party shall immediately be in default. In any case, the ordering party shall be in default if the payment is not effected within the period of 30 days after the due date and the receipt of the invoice. We are entitled to charge interest at the base rate of the Deutsche Bundesbank plus 8% per annum for the duration of the delay in payment. The right to make further claims for damages shall not be limited thereby. Dunning costs in the amount of EUR 5.00 per each dunning letter may be incurred.
5. We retain the right at any time to annul granting of credit even if it is within the allowance of time of payment within the framework of these conditions. We are entitled to demand a security sufficient at our discretion for any existing claim. If this request is rejected, if the ordering party fails to honour his payment obligations, or if circumstances become known to us that, according to dutiful discretion, are suitable to bring the creditworthiness of the buyer into question, then all our accounts receivable shall become due immediately, even if bills of exchange were received for them.
6. The ordering party is only entitled to offset or withhold payment if his counterclaim is undisputed or has been determined legally binding. Any deductions which are not expressly agreed, are not accepted.
IV. Liability
We are liable for defects of our deliveries and services only in accordance with the following provisions: Insofar as we are obliged within the framework of liability for defects, we prefer a subsequent performance and namely, either by a free-of-charge repair of deficiencies or redelivery, at our own discretion. In case of redelivery, instead of a tyre which does not have an insignificant defect, another tyre will be delivered at the price that is more advantageous for the purchasing party at the day of the delivery, plus VAT. We grant discounts to the price plus VAT at our reasonable discretion, in which the wear and tear degree of the reclaimed tyre (with the aid of the available remaining profile depth) is considered. Alternatively, we are also entitled to refund this discount in cash or by crediting the respective account to a current account. Insofar as we ascertain that the defects can be properly removed by repair, the repair will be carried out. Insofar as the ordering party has caused damages surpassing the defect, he shall bear the costs incurred during the repair. Insofar as subsequent performance fails, the customer is entitled to exercise the right to withdraw or reduce the purchase price; the compensation claim instead of performance remains unaffected. For any further claims, we shall be liable according to the law, in the event that specific intent or gross negligence is imputable to us, our legal representatives or senior executives. For damages based on slight negligence, all liability is excluded. This does not affect a statutory withdrawal right of the purchaser, provided that the conditions are met. Claims for defects against us are excluded if defects, impairment or damage are related to the fact that:
a) the tyres delivered by us were repaired by others or processed in another manner.
b) the serial number, the trademark or other signs permanently attached to the tyre are missing or modified, this particularly refers to signs which are no longer recognisable.
c) the air pressure specified for the respective tyre was not observed.
d) the tyres were exposed to an improper strain, in particular to excessive strain that is not permissible for the respective tyre size and design, or they were used at speeds higher than permissible.
a) the tyres were damaged after mounting due to incorrect mounting or the performance of the tyres was affected by other defects in the wheelset (e.g. dynamic imbalance) .
f) the tyre is mounted on a rim which is not appropriate, true to gauge or otherwise defective.
g) the tyres were damaged due to external factors or mechanical factors or exposed to excessive heating.
h) the tyres were stored before mounting in an open space by the customer or a third party appointed by the customer.
i) there is wear or damage to the good which occurred due to improper use or accident.
Within the framework of the following provisions, we are liable for deficiencies of our deliveries and services: We shall be liable for defects to retreaded tyres for the period of one year, and in case of material defect compensation claims arising from gross negligence or intentional breaches of duty or from injuries to the body, life and health, we shall be liable for the period of 2 years. The time limits for liability for defects are calculated respectively from delivery of the goods to the buyer. A tyre for which the liability is claimed should be handed over or sent back to us along with completely filled out complaints form, so that we can review the claim of the customer. If the claim for defects is rejected, we will send the rejected good to the customer if he demands it within the period of 14 days upon receipt of the rejection. In case of apparently unreasonable claim for defects, we reserve the right to invoice the costs incurred on our part in connection with the inspection and processing.
Defects should be reported as soon as possible. Apparent defects must be reported in writing within the period of 8 days upon delivery; non-apparent defects within the period of 8 days upon detecting the defect. If these reporting deadlines are not observed, we shall deem that the goods delivered by us are accepted.
We are liable for damages only in cases of wilful misconduct or gross negligence. Furthermore, we are liable in cases when properties assurances or guarantees on the goods delivered by us have been given or if we are responsible for the breach of contract. The liability in the aforementioned cases is restricted to the typical damage foreseeable upon conclusion of contract. This regulation of liability is also valid for our advice in word and writing. Any other claim for damage against us is precluded.
Claims under the Product Liability Act remain unaffected by this disclaimer.
V. Place of performance, place of jurisdiction, other agreements
1. The sole place of performance and place of jurisdiction for all claims arising from this business relationship, in particular arising from our deliveries is our domicile.
2. Our Terms and Conditions which form the basis of all agreements shall be considered as accepted by awarding the contract or acceptance of the delivery. Any other conditions are only valid if they have been accepted by in writing on a case-to-case basis. Invalidity of some provisions shall not affect the applicability of these Terms and Conditions as a whole.
3. Solely the laws of the Federal Republic of Germany shall apply, under exclusion of the UN Sales Convention.
4. Agreements made verbally or via telephone require written confirmation in order to be legally effective.