A. General stipulations
1. Scope of the General Terms of Business
We operate exclusively on the basis of our general terms of business. Deviating business terms or conditions of our suppliers and customers are not obligatory for us, even when we do not contradict them expressly. The laws of the Federal Republic of Germany apply exclusively.
Delivery deadlines should be agreed upon in writing. If we do not maintain delivery deadlines agreed upon firmly and if this delay is attributable to us, we are liable for compensation of loss or damage proven by the customer, which is not applicable if the delay is attributable to Force Majeure conditions. If goods are dispatched at the request of a customer who is a businessman or contractor, the risk is transferred to him as soon as we handed over the goods for the party appointed to carry out the dispatch.
For business with consumers. the prices on the day of the agreement apply. If there is a gap of more than 4 months between the conclusion of the contract agreement and the delivery deadline agreed upon, we are entitled to pass on price increases, and primarily those that arise from the increase in our purchase prices or increase in our labour expenses. If the price increase exceeds 10% of the price agreed upon originally, our customer is entitle to cancel the contract agreement. For transactions with businessmen or contractors, we are entitled, in the event of changes in costs until the day of delivery, to negotiate price increase, especially if this pertains to increase in material costs or labour expenses. There is no right to price increase if it can be proven that delays in delivery lie solely in our scope of responsibility.
Our claims are due and payable immediately upon issue without discounts. We are not obligated to accept checks or bills of exchange; if we do accept such instruments of payment, they are accepted only on account of performance. We shall be entitled to charge interest at the rate of 5% and 8% above the German Federal Bank valid at the time in question, for transactions with consumers and those with businessmen or contractors respectively. This does not exclude claims to higher damages resulting from delay of payment Our customers expressly reserve the right to prove that no loss or damage has occurred or that this has been significantly lower as that being enforced by us. A sum of EUR 5.00 will be charged as dunning costs. Offsetting and retention are excluded unless the counter-claim is uncontested or legally established. If bank collection procedure is agreed upon, our customer shall herewith dispense with any right that he is entitled to, for cancelling debits charged by us and his banks for the period of our business relationship and during the validity of our agreement on the bank collection procedure. Our customer shall notify his banks of this dispensation and inform us about the same on request.
5. Retention of title
We retain all rights to ownership of the goods delivered by us until they are paid in full. In the case of business transactions with fully qualified merchants this retention of ownership also applies until all claims, including future claims and conditional claims, resulting from the business relationship with us are satisfied. The following additional conditions apply for business transactions with commercial buyers and fully qualified merchants. The customer is not authorized to assign or pledge the goods as security; however he shall be entitled to further sell the conditional commodities in the course of normal business. Any claims against his business partners resulting from such transactions are hereby assigned to us at this time; in the event the goods have been further processed including any and all improvements. We will not disclose this assignment as long as any automatic debit authorization granted to us is not revoked or our customer is not more than 2 weeks in delay with due payments. In such cases the customer shall be obligated to notify his business partners of such assignment on his own and to submit his complete list of accounts receivable to us immediately. In such cases we shall have the right to review the customers books to determine the names and addresses of the business partners of our customer. If the value of all securities existing in our favour exceeds our claims for a sustained period by more than 10%, we shall release securities according to our selection at the request of our customer. If our customer does not fulfil the payment conditions agreed upon in spite of letter of reminder, we shall be entitled to repossess the goods delivered by us at any time whether installed or removed. Our customer expressly grants us the right to repossess our conditional commodities at any location; we are also entitled to disassemble or dismount the goods. The person momentarily in possession of the goods is hereby irrevocably authorized to return the goods to us. Our customer shall only be entitled to possession of the goods purchased under the right of retention of ownership until we assert our right to ownership. Upon return of the conditional commodities we will issue a credit in the amount of the present value.
6. Material defect liability
Within the scope of the following conditions we assume liability for consumers for material defects: – for the period of 2 years for new goods (Passenger vehicle tyres and heavy motor vehicle tyres) – for the period of one year for retreaded heavy goods vehicle – for the period of one year for used goods. The material defects liability periods are reckoned from the date of delivery respectively (receipt by the customer) of the goods to our customer. The above-mentioned reduction in the statutory period of limitation is not applicable to liability for loss or damage caused by gross negligence or caused deliberately, and not for loss or damage resulting from injury to life, body or health, which is based on negligent infringement of an obligation on the part of the seller. An infringement of obligation on the part of the seller is equivalent to a legal representative or vicarious agents. A tyre, for which a defects liability is being claimed, should be sent to us together with the complaint form duly and completely filled in, to enable us to check and review the complaint of the customer. If we reject the claim for defects liability, we will return the tyre for which a complaint has been made at our own cost to the customer, if he requests this within 14 days after receiving the rejection notice from us. Defects should be claimed in the short term if possible. For transactions with businessmen or contractors, claims for apparent defects must be lodged within 8 days after delivery (receipt by the customer) in writing, while claims for defects that are not apparent, must be lodged within 8 days after they have been identified. If you do not maintain these time periods for lodging a claim for defects liability, the goods delivered by us shall be deemed to be approved. Claims for defects liability are ruled out in this case, unless they are claims for compensation in accordance with Article 437, clause 3 of the BGB (German Civil Code) provided that we are culpable of gross negligence or wilful intent. The claim for defects liability by businessmen or contractors is ruled out in any case after the expiry of three months. The claim for defects liability for transactions with consumers is restricted to rectification of the defect or delivery of a replacement based on the choice of the customer. For translations with businessmen or contractors, we have the right of choosing between rectification of the defect or replacement. If two attempts at fault rectification or replacement delivery fail, our customer has the right, based on his choice, to decrease the remuneration (Reduction) or to declare revocation (Cancellation) of the contract agreement. For transactions with businessmen or contractors, we are entitled, in case of replacement delivery, to issue lower value of the credit note in accordance with the degree of wear and tear of the tyre or to make less payment accordingly. Our customer has the choice between issue of a credit note and payment. All claims against us are excluded, when the damages, impairments, complaints or defects result from any of the following circumstances:
a) The goods delivered by us were repaired or processed in another manner.
b) The serial number, the production symbols or other symbols permanently attached to the goods are no longer present or have been modified, in particular when they have been rendered unrecognisable.
c) In the case of tyres, when it is proven that the specified inflation pressure has not been observed.
d) Tyres have been subjected to loads contrary to specifications, particularly from exceeding the permissible load for the tyre size or the associated driving speed.
e) Tyres have been damaged after mounting by incorrect adjustment of the wheels or when their performance has been impaired by other malfunctions in the operation of the wheel (e.g. dynamic imbalance).
f) Tyres have been mounted on an improperly assigned, incorrectly calibrated, rusty or otherwise defective rim.
g) Tyres have become defective due to external influences or mechanical damage or subjected to external heat.
h) If, when changing wheels, the wheel nuts or bolts were not re-tightened after driving 50 km, assuming that we have advised our customer of this necessity.
i) Tyres have been stored outdoors by the customer or by a third party commissioned by the customer before mounting.
j) Natural wear or damage to the goods is present resulting from improper handling or an accident.
k) Tube-type tyres are mounted by the customer or a third party with used tubes / flaps, tubeless tyre versions are mounted by the customer or a third party without replacing the valve (passenger car tyres) or without new sealing ring (HGV tapered seat tyres).
In case of a defects liability claim being justified, we shall bear all expenses arising in connection with the handling of the warranty.
Disagreements regarding these guarantee terms and handling of complaints are to be settled by the independent board of arbitration of the Federal Association for Tyre Commerce and Vulcanization Trade [Bundesverbandes Reifenhandel und Vulkaniseur-Handwerk e.V.] when our customer or we, in mutual agreement with the customer, appeal to this board as soon as the dispute becomes known. An appeal to the board of arbitration does not exclude further legal action. Any statute of limitation regarding the claims shall be extended by the time required for the arbitration procedure. The board of arbitration will not take action, when legal proceedings are already pending; it shall suspend its action, when legal proceedings are started during the arbitration procedure. The procedure of the board of arbitration is based on their rules of internal procedure, which will be issued to the parties by the board of arbitration on request. The arbitration proceedings are free for both parties.
We are liable for compensation if we or our vicarious agents are culpable of wilful intent or gross negligence. Moreover, we are liable if properties have been assured or guarantees have been provided or if the loss or damage is caused by a delay on our part or by provision of the service having become impossible for reasons attributable to us. Moreover, we are liable in case of infringement of significant basic obligations. In the cases mentioned above, the liability is limited to loss or damage that is typically foreseeable at the time of concluding the contract agreement. This is not applicable provided the transactions are made with consumers. In all other cases, claims lodged with us for compensation are ruled out. Limitation of liability or exclusion of liability is not applicable in case of physical injuries. Limitation or exclusion of liability is also not applicable if and provided that we are liable in accordance with the provisions of the Product Liability Act.
8. General provisions
For transactions with businessmen or contractors, the location of our registered office is the place of fulfilment and exclusive Court of jurisdiction. Any agreements made on telephone or verbally must be confirmed promptly in writing. If any provisions of these General Terms of Business are or become ineffective or invalid, this shall not affect the legal effectiveness or validity of the remaining provisions.
9. Alternative dispute resolution pursuant to Art. 14 para. 1 ODR-VO and § 36 VSBG:
The European Commission provides a platform for online dispute resolution (OS), available at https://ec.europa.eu/odr. We will not be involved in a dispute settlement procedure before a consumer arbitration agency. And we are not obliged to do so.
B. Special provisions for disposal services
For disposal services, the following conditions are applicable as a supplement and in addition to the clauses listed under A.
1. Proof of weight
Weight vouchers are valid only if the weight has been determined by calibrated weighing scales. If calibration is not verified or proven, we are entitled to apply a weight tolerance of +/– 10% to the measurement made.
2. Proof of quantity
The number of pieces is determined by our personnel and complaints must be lodged immediately after the counting, otherwise this shall be binding on both parties.
3. Services not agreed upon
If services become necessary that have not been agreed upon contractually, especially loading activities by our employees, we are entitled to decline the provision of these services. If the services are provided by our employees, we are entitled to charge an hourly rate of EUR 50.00 plus VAT (Value Added Tax).
4. Delivery quantities
Delivered quantities – provided that they are not expressly reserved – are binding for both parties. For any excess or shortfall in the delivery quantities, we are entitled to charge for the same reasonably. This is also applicable to pick-up by Kurz Karkassenhandel GmbH or their sub-contractor.