General Terms and Conditions of Sale, Delivery, Payment and Assembly for G&S Fahrzeugtechnik GmbH & Co. KG Valid as of January 2015
In this document the following words are understood with the following meanings:
“Customer” is the organization or person who purchases goods or services; the Buyer
“Contractor” is G&S Fahrzeugtechnik e.K., the Seller
1. Placing of Orders
1.1 The Contractor makes offers, sells, delivers and provides services exclusively on the terms and conditions as set forth hereafter. Adverse or deviating General Conditions or Conditions of Purchase on the part of the Customer will not be accepted. The expected or binding delivery/finishing date is provided per contract.
1.2 All individual offers, deliveries and services or prices in the attached list are in addition to the terms and conditions stated here.
1.3 The Customer will receive a copy of the contract. The Customer allows the Contractor to subcontract as well as to carry out test drives and vehicle transfers.
2. Offers and Prices
Prices for installation and other services connected with the contract are to be clearly stated. Invoicing according to catalog prices or, when agreed upon by the parties, expense-based invoicing is possible. Prices are seen as binding prices. Changes in pricing require a new offer in writing, in which work hours and components are separately listed and individually priced.
The Contractor is bound to this cost estimate until the end of a period of 4 weeks after submission. Should it occur that the total costs exceed this estimate while carrying out the contract, the Customer must give his/her permission to continue. Costs for providing quotations shall be carried by the Contractor. These costs are calculated upon placing the order. All prices will be calculated with VAT as per law.
3. Completion and Delivery
3.1 The originally specified completion and delivery date is binding. Should the delivery date be made impossible by acts of nature, civil disturbance, strikes, blockades or series disruption of company operation (e.g. disturbance in employees or suppliers), the Contractor is not obligated to provide the Customer with compensation. Should the delivery date be changed due to later changes in the original contract, the Contractor is also not obliged to provide the customer with compensation.
3.2 If not otherwise specified, the Contractor is also entitled to partial delivery. If partial delivery or delivery on call is agreed upon, the Contractor is entitled to: 1) withdraw from the contract within a reasonable period or 2) upon provision of the complete delivery require full payment if the Customer does not call for delivery or does not pay according to agreement.
3.3 If the contract states that ordered items are to be delivered to a specific address, the Customer overtakes responsibility for the items as soon as they are given over to the shipping company. Should shipment be delayed according to the Customer's wishes, the Customer overtakes responsibility immediately upon indicating readiness for shipment. Unless otherwise agreed upon, the Customer decides the method of shipment and dispatch routes. The Customer carries all shipping and transport costs. Shipments from the warehouse of the Contractor are to be insured only when required by the Customer and only under his/her name and invoice.
4. Acceptance of the Goods
4.1 The Customer must accept the goods upon completion of installation unless otherwise agreed upon.
4.2 The Customer is in arrears with acceptance if he/she fails to accept the goods within 1 week of the Contractor indicating completion and readiness for delivery. For installation work able to completed within 1 working day, the time limit for acceptance is shortened to 2 working days (Saturday is considered a working day).
4.3 If acceptance by the Customer is delayed, the Contractor is entitled to calculate a fee according to local custom for safekeeping and storage. The Contractor, at his/her discretion, is entitled to choose appropriate safekeeping and storage. The Customer takes responsibility for the risks and costs of safekeeping ad storage as well as shipments returned to the Contractor.
5.1 Unless otherwise agreed upon, all invoices must contain a list of prices and price factors for each type of work completed as well as for all materials and components used or delivered.
5.2 Complaints on the part of the Customer regarding invoicing are to be filed within 6 weeks of receiving the invoice. Statutory value-added tax is charged. Should the contract be based on an offer, it is sufficient to reference the offer in the invoice. Should additional work have been completed, this must be listed additionally.
6.1 All payments should be made when the order is dispatched or accepted, but at the latest within 1 week after shipment notification or item completion and delivery of the invoice (without discounts or allowances).
6.2 Should the order be picked up by the Customer, payment is to be made in cash or check. Should the order be shipped, payment is generally to be made in advance.
6.3 Default interest by delayed payments is 3% per annum above the discount rate of the German Central Bank (Deutsche Bundesbank) including VAT. Should additional costs such as bank charges be evidenced, the Customer shall bear these costs.
6.4 Should a prepayment have been agreed upon between Customer and Contractor, the payment is due on the date agreed upon. If no payment can be evidenced on that date, work is to be delayed until the payment is made.
7. Warranty and Guarantee
The Contractor provides warranty for the ordered items according to the following conditions, while the Customer's right to claim compensation for non-fulfillment due to omission of assured characteristics remains unaffected:
7.1 Should the Customer accepts the goods despite prior knowledge of deficiencies, warranty claims such as listed in points 7.1 through 7.8 only exist when the Customer reserves the right to claim defects immediately after receipt of the goods.
7.2 For defects claimed upon acceptance of the goods or by defects discovered later, warranty is provided if the defect is reported within 12 months of acceptance of the goods. For motor systems, the report time for deficiencies is 3 months after acceptance of the goods.
7.3 A written report and precise description of all deficiencies shall be provided to the Contractor immediately upon observation. Wear and tear is excluded from the warranty.
7.4 The Contractor will bear the costs of remedying (in the workshop of the Contractor) all deficiencies covered under warranty.
In the following cases the Contractor may allow another workshop to complete the work of remedying deficiencies:
7.4.1 the vehicle breaks down as a result of the deficiency at a distance more than 60km from the workshop of the Contractor. In this case, the consent of the Customer is necessary before beginning repairs on the vehicle;
7.4.2 Also in an emergency, the Customer is obliged to inform the Contractor immediately and to specify the address of the commissioned workshop. The Contractor bears the costs of labor, material, freight and towing.
7.5 Should a different workshop be commissioned to remedy deficiencies, the order slip must include the fact that the work being completed is the remedy of a deficiency by the Contractor, as well as the fact that the replaced components are kept available for a reasonable amount of time. The Contractor is obliged to ensure that costs to remedy the deficiency are held as low as possible.
7.6 Should the deficiency be a component which at the wish of the Customer is not to be installed by the Contractor but rather shipped to the Customer, the Contractor reserves the right to and bears the costs for rectification or replacement delivery.
7.7 Should remedy be impossible or a further attempt at improvement be unreasonable for the Customer, the Customer reserves the right to receive a discount, withdraw from the contract or claim damages due to non-fulfillment in the case of willful intent or gross negligence. The same applies if the Customer had the right to receive a replacement delivery.
7.8 No right to claim warranty exists where there is damage as a result of:
7.8.1 the Customer not immediately reporting in writing and describing specifically a deficiency to the Contractor;
7.8.2 the ordered item(s) not being provided to the contractor immediately after reporting the deficiency. In the case of a different workshop providing deficiency remedying services in an emergency, the address of the commissioned workshop is to be provided to the Contractor immediately;
7.8.3 the Customer bringing the defective item to another workshop outside of the conditions laid out in point 7.4, or remedying or in any way changing the defective item on his/her own account.
7.9 The basis for warranty claims are material defects, faulty manufacturing, or faulty installation. Not covered under warranty are items subject to normal wear and tear, items subject to wear and tear due to the use in motorsport competitions, and damages due to insufficient fuel quality and external labor and maintenance work. The warranty covers the replacement or repair of faulty parts as well as labor costs.
8. Extended Lien
8.1 The Contractor is is entitled to a contractual right of lien on the object in its possession, based on claims arising out of the order regarding the object.
8.2 Contractual right of lien can also exist due to claims from previous orders, replacement deliveries, and other deliveries insofar as they are directly related to the current object. Right of lien applies to other claims relating to the particular business connection only if such claims are uncontested or have become res judicata and the contractual object is owned by the Customer.
9.1 The legal representative and vicarious agents of the Contractor as well as the Contractor are liable for damages and losses on the contractual object/vehicle, for the objects in the vehicle expressly taken into keeping, and for damages resulting from test and transportation drives, insofar as any of them have acted culpably.
9.2 Should the contractual object be damaged during its safekeeping, the Contractor is obliged to repair the object free of charge. Should repair be too expensive or impossible, the replacement value on the day of damage is to be compensated, at the highest amount of which is according to the manufacturer's recommended retail price. In case the contractual object no longer exists, the recommended retail price of the most similar serial model from the particular manufacturer on the day of damage is to be used. This also applies should the contractual object or parts of it be lost. In case of loss of objects in the vehicle expressly taken into keeping, fair value of the objects shall be compensated. Determining the replacement value is carried out through an expert opinion by a sworn in vehicle expert if no other agreement is possible, which costs will be carried by the Contractor. Further, the Contractor is obliged to cover towing costs and compensate any personal damage up to the amount of minimum insurance for personal damages according to the Obligatory Insurance Law (PflVG). The limit of liability does not apply to damages caused by willful intent or gross negligence. If prerequisites for the compensation of the replacement value exist, the Customer can claim a replacement vehicle from the Contractor or compensation for renting a replacement vehicle for the time required to find—without delay—a comparable replacement for the contractual object. In the case of commercial vehicles, compensation for loss of earnings can be claimed as well.
9.3 In addition the compensation for direct or indirect damage caused by the Customer, irrespective of any legal basis, will not be granted unless the Contractor has acted with willful intent or has been grossly negligent.
9.4 The legal representatives, vicarious agents and employees of the Contractor are liable only in cases of willful intent or gross negligence.
9.5 The Contractor shall report any damages or losses to the Customer immediately. Similarly, the Customer is obliged to report immediately and in writing any damages observed to have been caused by the Contractor, which shall be particularly described. Claims made in person by the Customer for damages or losses for which the Contractor is liable shall be confirmed in writing.
10. Title retention
10.1 Components delivered and installed by the Contractor remain property of the Contractor up until full payment of all demands resulting from business relations between Customer and Contractor.
10.2 The Customer is entitled to handle and sell the reserved object through a proper business transaction as long as no payment delay exists. Pledging or collateral assignments are inadmissible. Claims resulting from the sale of the reserved object or for another legal reason shall be assigned by the Customer to the Contractor in their full amount immediately as a precaution. This gives the Customer permission, which may be revoked, to collect in his own name on the claims which he has assigned to the Contractor in order to pay the invoice. On the Contractor's request, the Customer must disclose the assignments and provide the Contractor with the required information and documents.
10.3 Processing or transforming the reserved object shall always be performed for the Contractor, but without obligation for the Contractor. If the Contractor's ownership expires by combination, then it is now agreed that the Customer's ownership of the same property passes to the Contractor according to the calculated value percentage.
10.4 In the event of access by third parties to the reserved object, the Customer will notify the third party of the ownership of the Contractor, and then notify the Contractor immediately so that the Contractor can assert property rights. Costs and damages associated with third party access and objection are to be compensated by the Customer.
10.5 In case of payment default or any other behavior of the Customer in breach of the contract, the Customer's rights of re-use of the reserved object and the rights to collect on claims expire. In addition, the Contractor is entitled to take back the reserved object at the cost of the Customer or, where appropriate, demand the Customer's assigned claims against any third parties. Withdrawal from the contract is not possible in the case of seizure and return of the reserved goods by the Contractor.
10.6 Should the value of the securities exceed the Contractor's secured claims through the business relationship by more than 25%, the Contractor is obliged at the request of the Customer to retransfer or release securities at the Contractor's discretion. Upon full payment of all the Contractor's claims in this business relationship, the ownership of the reserved goods and the assigned claims pass to the Customer.
11. Old components
Components removed from vehicles (whether original components or old components) are to be picked up by the Customer within 2 weeks. The Contractor offers no guarantee of security for components stored longer than this period of time. A replacement is excluded. This does not apply to components which could be offset or otherwise pass over to the ownership of the Customer.
12. Legal venue
For all claims present and future arising from the business relationship with sales persons, including claims based on a bill of exchange or check, the registered place of jurisdiction is the registered office of the Contractor. The same place of jurisdiction shall apply when the Customer has no general place of jurisdiction within the Federal Republic of Germany, or when the Customer's place of residence or the registered office is not known after signing the contract and at the time at which the action is filed.