General Terms and Conditions of Delivery and Payment of Wheelworld GmbH

§ 1 Scope of application:

1) The following terms and conditions of sale apply to all contracts concluded between the buyer and us for the delivery of goods. They also apply to all future business relationships, even if they are not expressly agreed again. Any of the buyer's terms and conditions that differ from our own are not binding for us, even if we do not explicitly object to them. The following terms and conditions of sale also apply if we carry out the buyer's order without reservation in the knowledge of conflicting or differing terms and conditions of the buyer. 

2) All agreements made between the buyer and us for the execution of the purchase contracts are set down in writing in the contracts. Any differing, conflicting or supplementary general terms and conditions, even if known, shall not become part of the contract unless their validity is expressly agreed to in writing.

§ 2 Conclusion of Contract:

1) Our offers are subject to change. We reserve the right to make technical changes and changes in shape, color and/or weight within reason. We are entitled to subcontract.

2) By ordering a product, the customer makes a binding declaration of intent to purchase the ordered goods. We are entitled to accept the contractual offer contained in the order within two weeks of receipt. Acceptance can be declared either in writing or by delivery of the goods to the customer. 

3) Conclusion of the contract is subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction has been concluded with our supplier. The customer shall be informed immediately if the service is not available. The consideration shall be refunded immediately. 

4) We reserve the property rights and copyrights to information, in particular illustrations, drawings, calculations and other documents, which are passed on to customers or suppliers; they may not be made accessible to third parties. This applies in particular to written documents and information marked “confidential”; the customer/supplier requires our express written consent before passing them on.

§ 3 Terms of payment:

1) Our prices are ex works and do not include packaging, unless otherwise specified in the order confirmation. Our prices do not include the statutory value added tax. This will be shown separately on the invoice at the statutory rate on the day of invoicing. 

2) A cash discount is only permissible if there is a special written agreement between us and the buyer. The purchase price is due for payment net (without deduction) immediately upon receipt of the invoice by the buyer, unless the order confirmation specifies a different payment term. A payment is only deemed to have been made when we can dispose of the amount. In the case of payments by check, the payment is only deemed to have been made when the check is cashed. 

3) If the buyer is in default of payment, the statutory provisions shall apply. The buyer shall only be entitled to set-off, even if complaints or counterclaims are asserted, if the counterclaims have been legally established, recognized by us or are undisputed. The buyer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.

§ 4 Retention of title:

1) The goods supplied (reserved goods) remain our property until all claims against the buyer, including all current account balance claims, to which we are entitled now or in the future, have been satisfied. If the buyer acts in breach of contract, e.g. defaults on payment, we have the right to take back the reserved goods after setting a reasonable deadline. If we take back the reserved goods, this shall constitute a withdrawal from the contract. If we seize the reserved goods, this shall constitute a withdrawal from the contract. We shall be entitled to realize the reserved goods after taking them back. After deducting a reasonable amount for the realization costs, the realization proceeds shall be offset against the amounts owed to us by the buyer. 

2) The buyer shall treat the reserved goods with care and insure them adequately at their own expense against fire and water damage and theft at replacement value. The buyer shall carry out any necessary maintenance and inspection work in good time at its own expense. 

3) The buyer is entitled to sell and/or use the reserved goods in the ordinary course of business as long as he is not in default of payment. Pledging or transfer of ownership by way of security is not permitted. The buyer hereby assigns to us, by way of security, all claims (including all current account balance claims) arising from the resale of the goods subject to retention of title or on any other legal grounds (insurance, tort) with respect to the goods subject to retention of title; we hereby accept the assignment. We irrevocably authorize the buyer to collect the claims assigned to us for the buyer's account in the buyer's own name. The direct debit authorization can be revoked at any time if the buyer does not properly fulfill his payment obligations. The buyer is not authorized to assign this claim, not even for the purpose of collecting the claim by means of factoring, unless the factor is simultaneously obliged to effect the consideration in the amount of the claims directly to us for as long as we still have claims against the buyer. 

4) Any processing or transformation of the reserved goods by the buyer is always carried out for us. If the reserved goods are processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same applies to the new item created by processing as to the goods subject to retention of title. In the event of inseparable mixing of the goods subject to retention of title with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including value added tax) to the other mixed items at the time of mixing. If the buyer's item is to be regarded as the main item as a result of the mixing, we agree that the buyer shall transfer proportional co-ownership of this item to us; we hereby accept the transfer. The buyer shall store the item in which we have sole or co-ownership for us. 

5) In the event of third-party access to the reserved goods, in particular seizures, the buyer shall indicate our ownership and notify us immediately so that we can enforce our ownership rights. If the third party is unable to reimburse us for the judicial or extra-judicial costs incurred in this context, the buyer shall be liable for these costs. 6) We are obliged to release the securities to which we are entitled insofar as the realizable value of our securities exceeds the claims to be secured by more than 10 %. 

§ 5 Remuneration:

1) The purchase price offered is binding. Prices quoted to companies are exclusive of VAT and apply ex works excluding packaging. If taxes, customs duties, freight charges, fees or expenses are increased or newly introduced between the conclusion and fulfillment of the contract, we are entitled to increase the purchase price accordingly if four months have already passed since the conclusion of the contract or the contractual partner is a merchant. Prices are valid for four months from the date of the contract. If a delivery period of more than four months is agreed, or in the case of continuing obligations that last longer than four months, we are entitled to pass on to the customer, by means of price increases, any cost increases that have occurred in the meantime for procurement/delivery, including those caused by changes in the law (e.g. an increase in sales tax). 

2) We are entitled to demand a reasonable advance payment if the claim is not otherwise sufficiently secured. This does not only apply to self-contained partial services.

3) The customer is obliged to pay the purchase price within 10 days of receipt of the goods. After this period has expired, the customer is in default of payment. During the period of default, the entrepreneur shall pay interest on the debt at a rate of 8% above the base interest rate. We reserve the right to prove and claim higher damages caused by default.

4) The customer shall only have a right of set-off if his counterclaims have been legally established or recognized by us. The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship. 

§ 6 Delivery and performance time:

1) Delivery dates or deadlines that have not been expressly agreed as binding are exclusively non-binding information. The delivery time specified by us only begins when the technical questions have been clarified. Likewise, the buyer must fulfill all of his obligations properly and in a timely manner. 

2) If the underlying purchase agreement is a transaction for delivery by a fixed date as defined in § 286, para. 2, no. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code), we shall be liable in accordance with the statutory provisions. The same shall apply if the buyer is entitled to claim that it is no longer interested in the further fulfillment of the contract as a result of a delay in delivery for which we are responsible. In this case, our liability is limited to the foreseeable, typically occurring damage if the default in delivery is not due to an intentional breach of contract for which we are responsible, whereby fault on the part of our representatives or agents in performance is attributable to us. 

3) We shall also be liable to the buyer in accordance with the statutory provisions in the event of default in delivery if this is due to an intentional or grossly negligent breach of contract for which we are responsible, whereby fault on the part of our representatives or vicarious agents shall be attributed to us. Our liability is limited to the foreseeable, typically occurring damage if the default in delivery is not based on an intentional breach of contract for which we are responsible. 

4) In the event that a delay in delivery for which we are responsible is due to the culpable violation of an essential contractual obligation, whereby fault on the part of our representatives or vicarious agents is attributable to us, we shall be liable in accordance with the statutory provisions, provided that in this case the liability for damages is limited to the foreseeable, typically occurring damage. 5) Any further liability for a delay in delivery for which we are responsible is excluded. The further legal claims and rights of the buyer, which he is entitled to in addition to the claim for damages due to a delay in delivery for which we are responsible, remain unaffected. 6) We are entitled to make partial deliveries and provide partial services at any time, provided this is reasonable for the customer. 7) If the buyer is in default of acceptance, we are entitled to demand compensation for the resulting damage and any additional expenses. The same applies if the buyer culpably violates their duty to cooperate. Upon occurrence of default of acceptance or payment, the risk of accidental deterioration and accidental loss passes to the buyer.

§ 7 Transfer of risk, shipping, packaging: 

1) Loading and shipment are carried out without insurance at the buyer's risk. We will endeavor to take into account the buyer's wishes and interests with regard to the mode and route of shipment; any resulting additional costs, even if carriage paid delivery has been agreed, shall be borne by the buyer. 

2) We do not take back transport packaging or any other packaging in accordance with the Packaging Ordinance; pallets are excluded. The buyer is responsible for disposing of the packaging at his own expense.

3) If shipment is delayed at the request of or due to the fault of the buyer, we will store the goods at the buyer's expense and risk. In this case, notification of readiness for shipment is the same as shipment. 

4) At the request and expense of the buyer, we will insure the delivery with transport insurance.

§ 8 Warranty:

1) If the buyer is an entrepreneur, we initially provide a warranty for defective goods at our discretion either by repair or replacement. 

2) If the supplementary performance fails, the customer can, in principle, demand a reduction in payment (abatement) or cancellation of the contract (withdrawal) at his discretion. However, in the case of only a minor breach of contract, in particular only minor defects, the customer has no right of withdrawal. 

3) Entrepreneurs must notify us in writing of obvious defects within a period of two weeks from receipt of the goods; otherwise the assertion of the warranty claim is excluded. Timely dispatch suffices to meet the deadline. The entrepreneur bears the full burden of proof for all eligibility requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notification of defects. 

4) If the customer chooses to withdraw from the contract due to a legal or material defect after unsuccessful subsequent performance, he is not entitled to any additional claims for damages due to the defect. If the customer chooses compensation after unsuccessful subsequent performance, the goods remain with the customer if this is reasonable for him. The compensation is limited to the difference between the purchase price and the value of the defective item. This does not apply if we have fraudulently caused the breach of contract.

5) For entrepreneurs, the warranty period is one year from delivery of the goods. This does not apply if the customer has not notified us of the defect in good time (paragraph 3 of this provision).

6) If the buyer is an entrepreneur, only the manufacturer's product description is deemed to be agreed as the nature of the goods. Public statements, recommendations or advertising by the manufacturer do not constitute any contractual description of the goods.

7) If the customer receives defective assembly instructions, we are only obliged to supply defect-free assembly instructions, and only if the defect in the assembly instructions precludes proper assembly. 8) We do not provide the customer with guarantees in the legal sense. This does not affect manufacturer's guarantees. 9) The above paragraphs do not affect a company's rights of recourse (Sections 478, 479 BGB), provided that no complaints, in particular according to paragraph 3 of this provision, have been violated.

§ 9 Limitation of liability: 

1) In the case of slightly negligent breaches of duty, our liability is limited to the foreseeable, contractually typical, direct average damage according to the type of goods. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. We are not liable to companies for slightly negligent breaches of insignificant contractual obligations. 

2) The above limitations of liability do not affect the customer's claims arising from product liability. Furthermore, the limitations of liability do not apply to bodily injury, damage to health or loss of life of the customer attributable to us. 3) Claims for damages by the customer due to a defect become time-barred one year after delivery of the goods. This does not apply if we can be accused of gross negligence, as well as in the case of bodily injury, damage to health or loss of life of the customer attributable to us. 

§ 10 Special features of our purchase:

1) In the event of a delay in delivery or definitive non-delivery on the part of the supplier, the latter shall pay us a lump-sum compensation amounting to 20% of the purchase price of the goods whose delivery is delayed or definitively not carried out. The compensation payment shall be correspondingly higher or lower if we can prove that the damage was higher or the supplier can prove that it was lower. 

2) If, after we have already fallen behind, the supplier sets us a reasonable extension under threat of refusal, the supplier is entitled to withdraw from the contract after the unsuccessful expiry of this extension; the supplier is only entitled to claims for compensation due to non-fulfilment in the amount of the foreseeable damage if the default is due to intent or gross negligence; otherwise, the liability for damages is limited to 50% of the damage incurred. However, this limitation of liability does not apply if a commercial fixed-date transaction has been agreed.

3) We are obliged to inspect the goods within a reasonable period; the complaint is timely if it is received by the supplier within a period of 2 weeks. 

4) Unless otherwise agreed in writing, we shall pay the purchase price within 14 days, calculated from delivery and receipt of the invoice, with 3% discount or within 30 days of receipt of the invoice net. 

5) If the supplier is responsible for product damage, it shall be obliged to indemnify us against third-party claims for damages at first request to the extent that the cause lies within its sphere of control and organization and it is liable itself in relation to third parties. In this context, the supplier is also obliged to reimburse any expenses that arise from or in connection with a recall action carried out by us. We will inform the supplier about the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give him the opportunity to comment.

6) The supplier warrants that no rights of third parties within the Federal Republic of Germany will be violated in connection with his delivery. If a third party asserts a claim against us for this reason, the supplier is obliged to indemnify us against these claims at our first request; we are not entitled to make any agreements with the third party, in particular to reach a settlement, without the consent of the supplier. This indemnity obligation of the supplier relates to all expenses that we necessarily incur from or in connection with the assertion of a claim by a third party. 

§ 11 Final Clauses:

1) The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention shall not apply.

2) If the customer is a merchant, a legal entity under public law or a special fund under public law, our registered office shall be the place of performance and jurisdiction, unless otherwise stated in the order confirmation; however, we shall also be entitled to sue our contractual partner in his country of jurisdiction. 

3) Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision that comes as close as possible to the economic success of the invalid one.