General Business Terms and Conditions for the Parts Business of RETEK AG (draft of August 5, 2002)
- At RETEK AG, used replacement parts from dismantled vehicles are obtained, warehoused and sold.
- Additionally, parts purchased from partner companies may be sold, new parts as well upon request.
The Seller of the merchandise is RETEK AG.
II. Scope of Validity:
- The contractual partners agree upon the exclusive validity of the following terms and conditions. Purchasing terms and conditions of the Buyer to the contrary shall be expressly rejected. In addition, in the event that the Buyer, outside of its general purchasing terms and conditions, objects to the general business terms and conditions of the Seller, the Seller shall object to the legal validity of the general purchasing terms and conditions of the Buyer.
- At the latest with the acceptance of the merchandise or service by the Buyer, the business terms and conditions of the Seller shall be considered to be accepted, provided that the Buyer has been given the opportunity to become aware of this.
- If terms and conditions are agreed upon that deviate from the general business terms and conditions of the Seller, then the provisions of these general business terms and conditions shall apply to the extent that they have not been concretely excluded and are not in conflict with the deviating terms and conditions.
- Terms and conditions that deviate from the general business terms and conditions may only be put into effect by the management board and the operational management.
- In addition, it shall apply for entrepreneurs in accordance with § 310 Para. 3 BGB [Bürgerliches Gesetzbuch/German Civil Code] that these general business terms and conditions shall apply for all future performances even if they have not been expressly agreed-upon once more.
III. Delivery Terms and Conditions and Availability:
- A delivery may in principle take place only upon the basis of a binding order.
- A binding order requires the complete address and signature of the Orderer.
- The web site of the RETEK AG Company with the goods listed there represents no offer of RETEK AG for the conclusion of a purchasing agreement. Also, the availability of the merchandise offered is not guaranteed. The web site of the RETEK AG Company serves exclusively for the inquiry regarding the availability of the merchandise by the Customer.
- For inquiries regarding availability of the merchandise, all possible resources may be used. The party making the inquiry is to provide RETEK AG, together with its inquiry, with its name, address and, where applicable, its e-mail address and ensure that RETEK AG is able to fulfill its information obligations in accordance with § 312 c BGB before the conclusion of the agreement.
- After the receipt of the inquiry, the Seller shall check to see whether the desired merchandise is available. Positive and negative replies shall immediately be given to the party making the inquiry with the price and the delivery timeframe. This notification shall apply exclusively for the point in time when it is provided. For changes in the relevant set of circumstances between this notification and the order by the Buyer, the Seller shall not be liable. A more substantial guarantee has not been made for a general availability of the merchandise that has been inquired about.
- If the Orderer reserves a part without already buying it, then this part shall be held by the Seller until 5:00 p.m. on the day following the reserving of the part, provided that this availability is confirmed to the Orderer. After this, there shall be no obligation of the Seller to continue to reserve the part for the Orderer. The Seller is then entitled to sell the part to someone else.
- In the event that the ordered merchandise should no longer be available due to unforeseeable reasons, then the Orderer shall be immediately notified.
- The transferal shall take place on the premises of RETEK AG. If the delivery or transferal, upon the request of the Customer, takes place at a different location, then RETEK AG shall invoice separately for the transport and insurance costs that are incurred by so doing as well as for other expenses incurred additionally. Notification of these costs shall be made to the Customer as soon as it is determined that the transferal is not supposed to take place on the premises of RETEK AG. The Customer shall then have the opportunity to choose to reject delivery and transferal at a different location. However, notification of this decision must be immediately made, at the latest within 3 days’ time, after it is notified by RETEK AG of the additional costs and expenses for the transport and insurance of RETEK AG.
- Certain unforeseeable events, such as force majeure, illegal labor actions, governmental measures, the lack of deliverers and other events for which the Seller shall not be responsible, shall entitle the Seller to delay the delivery for the duration of the hindrance and for an appropriate start-up time. If, in so doing, the carrying-out of the agreement becomes unreasonable for one of the parties, then it may in this respect withdraw from the agreement.
- The Buyer shall be obliged to accept the purchased merchandise if the delivery takes place within the specified time periods. For late deliveries, there shall be no obligation to accept the merchandise.
- The object of the purchasing agreement is not the washers, seals, serrated washers, hoses, pipes, cables, sparkplugs, incandescent plugs, bolts, pins and belts that are still fastened to the delivered part or unit, provided that they have not been expressly designated as the contractual object! They are transferred with the sold part or unit into the ownership of the Buyer free of charge, but shall however be subject to no claims whatsoever for damage compensation, non-performance, defects and warranty and may not substantiate such claims, either.
- For a late delivery, provided that events in accordance with Clause 8 are not responsible for the delay, the Seller shall only then be liable if the delay is based upon its intent or gross negligence. This exclusion of liability shall also be in reference to the independent vicarious agents of the Seller. Furthermore, the liability of the Seller, as well as for its vicarious agents, shall be limited with respect to the amount to the compensation for those damages which the Seller, while taking into consideration the circumstances which it knew or must have known at the time of the contractual conclusion, would have had to have foreseen as the possible result of the contractual violation, nevertheless at a maximum of 10 % of the contractual price. This exclusion of liability shall only apply if the Buyer is a commercial business or has to be treated as such.
- If the Buyer refuses the acceptance of the delivered merchandise without being entitled to do so in accordance with these terms and conditions or due to statutory provisions which were not contracted out with legal validity by these terms and conditions, then the Buyer is to pay for the transport costs and assumes the risk of the accidental loss of the merchandise from this point in time. In the event of the faulty refusal to accept by the Buyer, the Seller may set in writing an additional time period of 8 days for the Buyer with the declaration that the Seller will reject the fulfillment of the contract after the expiration of this time period. After the unsuccessful expiration of this additional time period, the Seller shall be entitled to withdraw from the agreement by written declaration or demand damage compensation due to the non-fulfillment. The setting of the additional time period is not required if the Buyer rejects the acceptance with seriousness and finality or makes known that it is also not willing or able to pay the purchase price within the additional time period. If the Seller demands damage compensation due to non-fulfillment, then this shall be in the amount of 15 % of the agreed-upon purchase price, provided that the Buyer does not substantiate lesser damages to the Seller. The Seller shall be at liberty to also assert higher damage compensation claims against documentation.
- In accordance with the packaging ordinance, transport packaging shall be taken back. The pallets are an exception to this. Pallets shall be taken back only against reimbursement of the incurred pallet fees.
- If the Customer has its branch in a country other than the Federal Republic of Germany and this country is party to the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG), then the transferal of risk provisions of Articles 66 to 70 CISG shall apply.
IV. Prices and Payment Terms and Conditions:
- All of the prices for parts specified by the Seller shall include the pure value of the goods in addition to the VAT in the statutory amount.
- Discounts or other deductions have not been granted.
- In the event of a direct sale, the payment shall be made in cash or by check. Checks shall only be accepted on account of performance. Its crediting to the purchase price shall only then taken place after the check is honored and the elimination of the risk of recourse while deducting any check fees.
- With shipments, the payment shall as a rule be collect on delivery (c.o.d.). The c.o.d. costs incurred shall be at the expense of the Buyer.
- The payment of invoices by bank transfer may be agreed upon with regular customers upon the basis of a separate supply agreement.
V. Retention of Ownership:
If the payment in full of invoices only then takes place after the delivery of the merchandise by the Seller, the following provisions shall apply regarding the retention of ownership:
- The purchased merchandise shall remain the property of the Seller until the payment in full of the purchase price has been made. For current accounts, the retained ownership shall serve as security for the respective balance payment claims.
- The Buyer shall be entitled to the re-selling and the processing of the purchased merchandise only in proper business dealings, provided that the re-selling takes place by it subject to the retention of ownership and without an assignment ban having been agreed upon. The Buyer shall already now assign all claims, including future claims, from a resale of the merchandise supplied by the Buyer in its full amount until the payment in full has been made to the Seller. It is revocably authorized to the collection of the assigned claim.
- A pledging or transfer by way of security of the supplied objects of the Seller subject to the retention of ownership is not permitted. The Seller is to be immediately notified in writing of claims of third parties to ownership of the merchandise, e.g. attachments or other restrictions.
- If the Buyer is a commercial business, then the Seller shall retain the ownership to the merchandise supplied by it until the settlement of all claims that it is entitled to from the Buyer, regardless of the legal reason. The handling and processing by the commercial Buyer shall not lead to the acquisition of ownership in accordance with § 950 BGB without the consent of the Seller. If the merchandise is mixed or combined with other items (§§ 947, 948 BGB), the co-ownership of the Seller to the mixed inventory or the uniform product shall be considered as having been agreed upon in the ratio of the invoice value of the included retained merchandise to the total of the invoice values. The new product created from the processing shall be considered to be retained merchandise in accordance with these terms and conditions.
- If the Buyer is a commercial business and assumes the claim derived from a resale in a current account relationship existing with its customers, then the current account claim shall be assigned to the Seller in full, or after a balancing of the recognized balance takes place up to the amount of the original current account claim. For current accounts, the retention of ownership and the assignment shall be considered as security for the balance payment claim of the Seller. Upon the request of the Buyer, the Seller shall release securities if and when the total of the security provided by the Buyer exceeds the total claim of the Seller derived from the business relationship by more than 20 %.
VI. Warranty for Defects
- The Seller shall assume the warranty for the serviceability in accordance with statutory regulations. However, this shall only take place if the maintenance work to and inspections of the vehicle are carried out in a technically correct manner in accordance with manufacturer’s guidelines against documentation, the operating manual of the vehicle is adhered to and, provided that the Seller has not examined this itself, in the past the maintenance work and inspections were carried out in accordance with the manufacturer’s guidelines and the operating manual of the vehicle was adhered to. This warranty restriction shall only then apply if the defect is based upon a violation of the aforementioned obligations. The Buyer shall be required to prove that the violation of the obligation did not cause damages. The warranty time period for used parts shall be 1 year from the delivery of the merchandise. For damage compensation claims, the statute of limitations shall be 1 year. For claims derived from the German Product Liability Act and in the event of intent or gross negligence, the legal statute of limitations shall apply.
- The warranty shall be excluded if damage was caused by other parts than those supplied by the Seller or through the improper assembly of parts not supplied by the Seller or due to the negligence of the operator, third parties or outside factors (e.g., accident, unauthorized use, flood).
- If RETEK AG is liable for damage compensation due to a negligent violation of an essential contractual obligation, then this liability shall be limited only to contractually typical damages.
- In the event of the violation of a pre-contractual obligation or a hindrance to performance existing at the time of the contractual conclusion (§§ 311 Para. 2, 311 a BGB), the damage compensation obligation shall be limited to the pre-contractual position.
- Not included in the warranty shall be modifications of the serviceability due to normal wear and tear in the warranty period and the consequential damages based upon this.
- In the event of the return of a replacement part, the safety label must be intact upon the part.
- In the event of the return of parts without defects, a rewarehousing fee in the amount of 20 % of the value of the goods shall be charged as a rule, provided that the return does not take place subject to the German Long Distance Sales Act (§ 312 b ff. BGB).
- A warranty requirement is the proper installation of the supplied merchandise.
- Replacement parts that are critical for safety, such as brake, chassis or steering parts must be properly installed in a professional automobile repair garage.
- With the purchase of a replacement part, the Buyer shall be informed of the general business terms and conditions regarding the replacement part characteristics of the purchased replacement part.
- A proper installation can be refutably required if this was undertaken in a corresponding professional automobile repair garage. As documentation, the submission of the repair bill shall suffice. If the Buyer itself is a professional automobile repair garage for the brand of vehicle to be repaired with the supplied part, such documentation shall not be required. If the Buyer is a commercial business, the warranty and guarantee shall lapse if a notification of obvious defects is not made immediately, for hidden defects within 4 weeks of receipt of the merchandise.
- When the merchandise is received, the Buyer is to check the accuracy of the parts supplied with its order, e.g., with the parts number. Warranty or guarantee claims, as well as damage compensation claims based upon consequential damages due to the incorrectness of the supplied part with the order part, are excluded in the event of a violation against this obligation to examine, provided that the non-conformance of the supplied part with the order part could have been recognized by the Buyer in a reasonable examination and the claims are based upon the incorrect delivery.
- In the event of the notification of an incomplete delivery or delivery that otherwise deviates in the manner and scope of the order as well as externally recognizable defects with respect to faulty merchandise in a warranty claim, the Seller shall be obliged to an remedying of the defect or a replacement delivery or, upon request of the Buyer, to an exchange. The Buyer shall only then have a claim to withdraw for the agreement or a reduction (lowering of the purchase price), if at least two attempts by the Seller to remedy the defect or make a replacement delivery are unsuccessful, provided that the defect or guarantee claim did not arise due to the intent or gross negligence of the Seller. Instead of a remedying of the defect or replacement delivery, the Seller shall be entitled to offer the Buyer a reduction or withdrawal from the agreement if it is not possible for the Seller to make the remedying of the defect or the replacement delivery under appropriate conditions.
- The Buyer must make written notification of defects while immediately discontinuing the handling and processing of the supplied parts. If the Buyer is a commercial business, the notification of defects shall not entitle it to a withholding of the purchase price or an offsetting with counterclaims, unless they are undisputed, legally determined in a court of law or ready to be ruled upon. Claims for defects have to be asserted in court by the Buyer no later than one month after the written rejection of the notification of defects by the Seller.
- The right to the elimination of the defects, replacement delivery, exchange, reduction (lowering of the purchase price) or withdrawal from the agreement shall be subject to the examination by the Seller of the origin and serviceability of the merchandise about which a notification of defects has been made.
- If necessary, the Seller may authorize an independently sworn expert to carry out the examination of the defects about which notification has been made. If the notification of defects by the Customer reveals itself to be groundless, the costs for the necessary transport, expert reports and the labor expense incurred shall be assumed by the Buyer.
- If, upon the express wish of the Buyer, a structurally identical part is ordered and supplied, the Seller shall assume no warranty for the usability of the part for its intended purpose. Damage compensation claims, regardless of the legal reason, are excluded unless the Buyer has instructed the Seller or its vicarious agents regarding the purpose for the use of the structurally identical part in such a manner that the Seller would have had to have recognized the non-usability of the part for this purpose. In this respect, the liability is limited to intent and gross negligence. The Seller and its vicarious agents have no obligation to do further research regarding the intended use of the purchased part. The warranty with respect to the part in and of itself, regardless of its usability for the intended purpose, shall otherwise remain unaffected.
- The parts/units shall be supplied without machines and equipment, material resources and lubricants as well as fuels, chemicals, filter pads, coolants and antifreeze, hydraulic fluid, oils and grease.
- With respect to motors, the belt or belts have to be replaced before the installation and the oil filters changed.
- The Seller shall be liable for damages – regardless of the legal grounds – only if it, its legal representative or its vicarious agent has caused them with intent or gross negligence, provided that nothing else to the contrary is provided for in the current regulations.
- The Buyer is obliged to immediately notify the Seller in writing of any damages or losses for which the Seller is to pay or have payment made.
- The personal liability of legal representatives, vicarious agents and personnel of the Seller to the Buyer shall be excluded except in the cases of intent and gross negligence, provided that nothing to the contrary is provided for in the current regulations.
- Except as otherwise provided for in these business terms and conditions, no liability shall be assumed for consequential damages with the exception of intent or gross negligence.
- The provisions of the German Product Liability Act shall remain unaffected by this.
- The above-mentioned exclusion of liability with respect to consequential damages for defects shall not apply for claims due to the absence of a quality guarantee that was supposed to protect against such consequential damages for defects, and in the event of the violation of contractual obligations, the fulfillment of which only then makes possible the proper execution of the agreement.
VIII. Legal Venue:
If the Buyer is a commercial business, the commercial residence of the Seller has been agreed upon as the exclusive legal venue for all present and future claims arising from the business relationship including claims derived from promissory notes and checks.
IX. Applicable Law:
German law shall apply with the exception of the case that the Customer has its branch in a country other than the Federal Republic of Germany and that this country is a party to the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 04/11/80: In this case, this convention (CISG) shall apply with the exception of Article 38 Para. 3, Article 44 and Article 57 Para. 1 b CISG.