General Terms and Conditions of Business of McGard Deutschland GmbH
Sec. 1 Scope of application and contractual basis
(1) The purchase contract for the supply of goods concluded between you, the Purchaser, and us, the Seller, shall be governed by the General Terms and Conditions of Sale set forth below. Any deviating terms and conditions of purchase will not be accepted, unless they are expressly approved by us.
(2) All agreements made between you and us in connection with the purchase contract are set forth in particular in these General Terms and Conditions of Sale, our written order confirmation and our notice of acceptance.
(3) The illustrations or drawings contained in our brochures, advertisements and other offer documents shall only be approximate, unless the information provided therein has been expressly designated by us as binding.
(4) You can select goods from our online product range and collect these goods in the online shop in a so-called shopping cart by clicking on the button with the shopping cart symbol. By clicking on the “Buy now” button, you submit a binding offer to purchase the goods in the shopping cart. Before submitting the offer (order), you can view and change the goods in the shopping cart at any time. You can only place your order once you have accepted these terms of contract by clicking on the “Accept GTC” button, thereby including them in your offer. After receipt of the order, we will send you an automatic acknowledgement of receipt (order confirmation) by email, which states your order and which you can print out by using the “Print” function. The automatic acknowledgement of receipt documents the content of your order and our acceptance.
(5) You can select goods from our online product range and order these goods by email or fax. After receipt of the order, we will accept your offer to enter into a contract either by sending you an acknowledgement of receipt (order confirmation) by email or by delivering the goods.
Sec. 2 Prices; payment
(1) Our prices contain the cost of packaging and the statutory value-added tax; however, the cost of transport and shipping expressly stated in the online order form is only included in our prices if this has been arranged with you by separate agreement. In the event that you revoke your declaration of intent to enter into a purchase contract (order), you will have to bear the regular cost of returning the goods, as specified in the Withdrawal Policy.
(2) If you place the order in exercise of your trade, business or profession, our prices applicable at the time of concluding the contract shall apply ex warehouse subject to the statutory value-added tax. Any customs duties, charges, taxes and other public dues shall be borne by you. In the event of sales shipment, you will additionally have to bear the cost of transport ex warehouse and the cost of any desired transport insurance
(3) We ask you to always return the goods in their original packaging.
(4) Payments for orders placed in the online shop can be made by instant transfer, credit card or PayPal. Payments for other orders can be made, at our option, either on receipt of invoice or by cash on delivery.
(5) If you default on the payment, we shall be entitled to charge interest amounting to 5% above the respective base interest rate of the European Central Bank (ECB) from the due date. We reserve the right to prove that we have incurred greater damage or loss.
Sec. 3 Offsetting; right of retention
You shall be entitled to exercise rights of setoff in respect of our claims if your claims have been declared final and absolute, have been recognised by us or are uncontested. You shall also be entitled to exercise rights of setoff in respect of our claims if you assert notices of defects or counterclaims that are based on the same purchase contract. As the Purchaser, you may only exercise your right of retention if your counterclaim is based on the same purchase contract.
Sec. 4 Period of delivery and performance
(1) Our delivery dates or deadlines shall be non-binding, unless they have been expressly agreed upon as binding between you and us.
(2) Four weeks after a non-binding delivery date or deadline has been exceeded, you may request us in text form to deliver the goods within a reasonable period. If we culpably fail to observe a delivery date or deadline expressly agreed as binding or if we are in default of delivery for another reason, you shall set us a reasonable deadline for effecting the performance. If this deadline expires without effect, you shall be entitled to withdraw from the purchase contract.
(3) Subject to the limitations set forth in Sec. 5 below, we shall also be liable to you in accordance with the statutory provisions if the contract is a fixed-date transaction or if you are entitled, as a result of a delayed delivery attributable to us, to invoke the cessation of your interest in the fulfilment of the contract.
(4) We shall be entitled to make part deliveries and render part performance at any time to the extent that this is reasonable for you.
Sec. 5 Rights in the event of default and defects; liability
(1) If the delivered item does not possess the quality agreed between you and us or if it is not suitable for the purpose assumed based on our contract or for the general purpose or if it does not possess the features that you could reasonably expect based on our public statements, we shall be obliged to effect cure. This shall not apply if we are entitled by law to refuse to effect cure.
(2) The cure will be effected, at your option, by either remedying the defect (repair) or delivering substitute goods. You must grant us a reasonable period to effect cure. You are not entitled to reduce the purchase price or withdraw from the contract while the cure is being effected. After two unsuccessful attempts to remedy the defect, the cure is deemed to have failed. If the cure has failed, you are entitled, at your option, to either reduce the purchase price or withdraw from the contract.
(3) You are entitled to assert claims for damages based on a defect only after the cure has failed. This shall be without prejudice to your right to assert further claims for damages in accordance with the paragraphs below.
(4) We shall be liable in accordance with the statutory provisions for injuries to life, limb and health that are based on a culpable breach of obligations on our part or on the part of our legal representatives or agents. Furthermore, we shall be liable in accordance with the statutory provisions for any other damage that is based on intentional or grossly negligent breach of contract as well as fraudulent intent on our part or on the part of our legal representatives or agents. Insofar as the Product Liability Act is applicable, we shall be liable without limitation in accordance with its provisions.
We shall also be liable under a quality and/or durability warranty to the extent that we have provided such a warranty in respect of the delivered item. If damage occurs that is based on the quality or durability warranted by us not being present, but this damage does not directly affect the goods delivered by us, we shall only be liable if the risk of such damage is clearly covered by our quality and durability warranty.
(5) Where the damage caused by default or a defect is based on the slightly negligent breach of a material contractual obligation, i.e. the slightly negligent breach of an obligation the discharge of which is an essential prerequisite for the proper performance of the contract and the discharge of which you, the Purchaser, may rely upon as a matter of course, our liability shall be limited to the typical damage foreseeable on conclusion of the contract. The same applies if you are entitled to claim damages in lieu of performance.
(6) Any further liability claims against us shall be excluded, irrespective of the legal nature of the claims you assert against us. This shall be without prejudice to our liability pursuant to paragraph 3 above.
(7) Your warranty claims shall expire 2 years after delivery of the goods. If you conclude the purchase contract in exercise of your trade, business or profession (entrepreneur), your rights under warranty shall expire 1 year after delivery of the goods.
Sec. 6 Retention of title
(1) We retain the title to the goods delivered (retained goods) until all claims arising from the purchase contract have been settled in full.
(2) If you conclude the purchase contract in exercise of your trade, business or profession, we retain the title to the goods delivered until all our present and future claims arising from the purchase contract and any ongoing business relationship (secured claims) have been settled in full.
(a) Until full settlement of the secured claims, the goods subject to retention of title may neither be pledged to third parties, nor may they be transferred as security. You must notify us without delay if an application for the institution of insolvency proceedings is filed or if third parties access the goods to which we hold the title (e.g. attachments).
(b) If you breach the contract, in particular if you fail to pay the due purchase price, we shall be entitled in accordance with the statutory provisions to withdraw from the contract and demand return of the goods based on the retention of title and the withdrawal. If you fail to pay the due purchase price, we may only assert these rights if we have previously set a reasonable deadline for payment and this deadline expired without effect or if setting a deadline can be dispensed with in accordance with the statutory provisions.
(c) Until this authorisation is revoked, you are authorised to resell and/or process the goods subject to retention of title in the normal course of business in accordance with (cc) below. In this case, the following provisions shall apply in addition.
(aa) The retention of title shall cover the full value of the products created by processing, intermixing or combination of our goods, and we shall be deemed the manufacturer. If the rights of ownership of third parties remain in existence following processing, intermixing or combination with their items, we shall acquire co-ownership in proportion of the invoice value of the processed, intermixed or combined goods. Apart from that, the resulting product shall be subject to the same provisions as the goods delivered under retention of title.
(bb) You shall hereby assign to us as security the claims against third parties arising from the resale of the goods or the product in full or in the amount of our possible share of co-ownership pursuant to the foregoing paragraph. We hereby accept the assignment. Your obligations pursuant to (2) (a) of this section shall also apply in respect of the assigned claims.
(cc) You remain authorised to collect the claims, as are we. We undertake not to collect the claims as long as you meet your payment obligations, your ability to pay is not impaired and we do not enforce the retention of title by exercising one of the rights pursuant to (2) (b). If this is the case, however, we shall be entitled to demand that you disclose to us the assigned claims and the corresponding debtors, provide us with all information and any pertinent documents required for the collection and inform the debtors (third parties) of the assignment. Furthermore, we shall be entitled to revoke your authorisation to resale and process the goods subject to retention of title.
Sec. 7 Final provisions, applicable law
This contract shall be governed by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.