General Sales Conditions of Trade by company NB PARTS GmbH
Daimlerstrasse 7, D-91301 Forchheim, version dated 01.01.2008
§ 1 GENERAL
(1) All supplies and services are governed exclusively by the following terms and conditions of sale and supply; these are applicable only in respect of business entities pursuant to § 310 Para. 1 and § 14 of the German Civil Code. These terms and conditions shall also apply to all future business relationships without the need for express reiteration.
(2) Conditions of the customer divergent from our terms and conditions and not expressly recognised by us are non-binding, even if we do not expressly contest them.
(3) These terms and conditions of trade are included and should be interpreted exclusively in accordance with the law of the Federal Republic of Germany, as should the conclusion and interpretation of any legal transactions with the customer.
§ 2 OFFERS, SCOPE OF SERVICES AND CONTRACT CONCLUSION
(1) Our contract offers are non-binding and subject to change.
(2) Any services owed under the contract shall be determined solely by our order confirmation. The qualities specified therein comprehensively and conclusively determine the features of the delivery item. Public statements made by our suppliers, the manufacturers and their subsidiaries or third parties shall contain no delivery item features that change or supplement this specification of qualities.
3) Modifications to the style, design and colour as well as the scope of supply on the part of the manufacturer during the period of supply are permitted, provided these changes take reasonable account of the interests of the customer.
(4) Partial deliveries are permissible, provided this is reasonable for the customer.
(5) Documents on which the offer or order confirmation is based, such as illustrations, drawings, indications of dimensions and weight, are as a rule only to be seen as approximate values, unless they are expressly declared as binding.
§ 3 PRICES AND PAYMENT TERMS
(1) Our prices are ex-works and exclude any applicable VAT, package and posting and other transport costs.
(2) Should more than 4 months elapse between contract conclusion and delivery, whereby we are not accountable for any delay in delivery, we are entitled to increase the price to reflect any material costs, wage expenditure and other additional expenses incurred for our account. Should the purchase price be increased by more than 40%, the customer is entitled to withdraw from the contract.
(3) Payment of the invoice amount is due upon handover of the delivery item or upon transmission of invoice, at the latest, however, within 30 days from receipt of invoice. For goods deliveries, we offer a 2% discount if payment is made within 14 days from delivery and date of issue of invoice.
(4) If the payment term is intentionally exceeded, we will calculate late payment interest at 8% above the base interest rate valid at the time whilst reserving the right to raise further claims. The same shall apply in the event we defer payment.
(5) Offsetting and retention are excluded unless the request to offset is undisputed or legally established.
§ 4 DELIVERY AND PERFORMANCE PERIOD, LIABILITY UPON DEFAULT
(1) Delivery deadlines or periods that have not been expressly deemed binding in writing are solely for information purposes and are not binding. The delivery period commences upon contract conclusion and starts to run at the earliest, however, once the customer has duly fulfilled its duties to cooperate. Should contract amendments be agreed after contract conclusion, then the delivery period must also be rearranged accordingly.
(2) Should business disruptions arise due to industrial action (in particular strikes and lock-outs) or due to unforeseen impediments beyond our control, e.g. delayed delivery from our supplier, traffic or business disruptions, lack of materials or power, etc., then the agreed delivery period shall be extended by the duration of the performance default caused by these circumstances.
(3) Deliveries are subject to correct and prompt supplies being made to us. We shall inform the customer immediately in the case of non-availability of the delivery item and in the event of withdrawal from contract, we will immediately refund any advance payments received.
(4)Should any non-binding delivery period/deadline be exceeded, the customer may, after allowing a 3-week period of grace, provide us with a written demand for delivery. We may be deemed in delay only after this period has expired. Should any binding delivery period/deadline be exceeded, we will be deemed in delay as soon as this delivery period/deadline is exceeded, unless we are not responsible for the delay. The customer’s rights in the event of such delay are conclusively regulated in (5).
(5) Claims for compensation as a result of lateness are excluded if there is only minor fault on our part and if there is no breach of essential contractual obligations. In all other respects, we are liable towards the customer in the event of delivery delays in accordance with the legal regulations. If the delay results from gross negligence whereby a fault of our legal representative or vicarious agent is attributable to us, our liability is limited to typical, foreseeable damages. In all other respects, where we are liable due to delay, our liability for compensation in addition to performance is limited to 5% and for compensation instead of performance to 20% of the value of the delivery/service. These limits are not applicable in the event of liability due to injury to life, body or health.
§ 5 TRANSFER OF RISK
Risk is transferred to the customer as soon as we have made the goods available for the customer and have notified the customer to this effect. The customer is obliged to accept the goods within a period of 8 days, unless the customer is entitled to decline to accept the goods due to significant defect.
§ 6 RETENTION OF TITLE
(1) We retain title to the goods supplied until payment has been made in full. This retention of title also applies until all claims, including future and conditional claims, arising from the business relationship with the customer have been fulfilled.
(2) The customer is not authorised to transfer the goods by way of security or to pledge the goods as collateral, although the customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us all claims arising from any such resale.
(3) If the customer processes the goods, the retention of title also extends to the entire new item. The customer acquires a co-ownership share corresponding to the ratio of the value of its goods to the value of the goods supplied by us.
(4) If the value of all existing securities assigned to us exceeds our existing claims by more than 10% in the long term, then we shall release the securities at our discretion upon the customer’s request.
(5) We are entitled to exercise our rights to retention of title without withdrawing from the contract. This applies in particular if the customer is in delay with payment, whereby we are entitled to reclaim the reserved goods without setting a deadline.
§ 7 CLAIMS FOR DEFECTS
(1) If a commercial transaction exists for both parties, then the customer is obliged to inspect the goods immediately upon receipt, to the extent that this is feasible in the normal course of business, and if a defect is discovered, the customer is obliged to notify us without delay. If the customer omits to give such notification, then it shall be deemed that the goods have been accepted, unless the defect were such that it could not be detected upon inspection. In all other respects, §§ 377 ff. of the German Commercial Code apply.
(2) Claims for defects are excluded in the case of only slight deviation from the agreed quality and in the case of only slight impairment of serviceability.
(3) Customer claims for defects are limited to subsequent performance. The customer must allow us an appropriate amount of time to effect the subsequent performance. We may elect to effect subsequent performance through rectification of defect or substitute delivery. Should subsequent performance be unsuccessful, the customer has the right to either a reduced price or withdrawal from the contract. In any case, subsequent performance is not deemed unsuccessful until after the second failed attempt.
(4) Further claims by the customer are excluded, unless they result from acceptance of a guarantee. This does not apply in the case of malice, gross negligence or breach of fundamental contractual obligations by us.
(5) The customer’s recourse claims in accordance with § 478 of the German Civil Code exist only insofar as the customer has not made any agreements with its subpurchaser beyond the legal claims for defects.
§ 8 LIABILITY
(1) If, according to legal provisions, we are liable for damage caused by minor negligence, then our liability is limited, unless caused by injury to life, body or health. Liability exists only in the case of breach of fundamental contractual obligations and is limited to typical damages foreseeable at the time of contract conclusion.
(2) If we or our representatives or vicarious agents are responsible for malice or gross negligence, we will be liable in accordance with the legal provisions. In cases of gross negligence, however, our liability is limited to typical damages foreseeable at the time of contract conclusion, except in the case of injury to life, body or health.
(3) In all other respects, our liability is limited to damages due to impossibility of performance and to reimbursement of wasted expenses up to a total of 20% of the value of the delivery/service. Further claims are excluded
(4) This does not affect our liability in the case of fraudulent concealment of a defect resulting from acceptance of a guarantee or exercise risk and in accordance with product liability law.
(5) The above exclusions and restrictions on our liability also apply to the personal liability of our legal representatives and vicarious agents.
§ 9 STATUTE OF LIMITATIONS
(1) The period of limitation for claims and entitlements due to defects, on whatever legal grounds, is 1 year. The also applies to recourse actions in accordance with § 479 of the German Civil Code.
(2) The period of limitation specified in (1) also applies to all customer claims for damages related to a defect, whatever the legal basis of the claim.
(3) The period of limitation specified in (1) and (2) does not generally apply in cases of malice, fraudulent concealment of a defect, acceptance of guarantee, injury to life, body or health, claims made in accordance with the product liability law, gross negligence or breach of fundamental contractual obligations.
§ 10 OBLIGATION, PLACE OF PERFORMANCE, PLACE OF JURISDICTION
(1) Should any individual provision of this contract, or any of its components, be ineffective, this shall not affect the effectiveness of the remaining provisions. The contract partners have a duty, in the context of being reasonable and acting in good faith, to replace the ineffective provision with an effective provision that best approximates the economic purpose of the ineffective provision, provided this does not cause any substantial change to the subject terms of the contract; the same applies where a circumstance that requires legal regulation has not been expressly regulated.
(2) The place of performance for all obligations arising directly or indirectly from this contractual relationship, including duty of payment, is our company headquarters. The place of jurisdiction is likewise our company headquarters. We are, however, also entitled to bring a claim before a court that has jurisdiction for the headquarters or a subsidiary of the customer.