1. Scope of these terms
1.1 These General Terms and Conditions apply exclusively to businesses within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. Consumers within the meaning of Section 13 BGB are not supplied through the online shop. We carry out the orders placed with us exclusively on the basis of the following General Terms and Conditions (Terms). They are agreed upon placement of the order, with any other terms and conditions excluded at the same time. Our Terms also apply to future orders.
1.2 The customer confirms that it received our Terms sufficiently in advance of the conclusion of the contract to have had enough time and opportunity to read them and to understand the meaning and scope of all their provisions.
1.3 Amendments to our Terms, like any other contractual agreements, including those made with our field sales staff, are only effective if confirmed in writing by our management (see clauses 2.4 and 4.2 of these Terms). The written-form requirement itself can only be waived in writing.
2. Offers and descriptions
2.1 Our offers and contracts are always non-binding and subject to availability, in particular to supply by our upstream suppliers.
2.2 Unless expressly warranted otherwise in writing, descriptions of our products and services, for example in brochures, drawings or elsewhere, as well as test and sample deliveries, reflect average quality values from which deviations may occur in individual cases.
2.3 We deliver goods of average kind and quality. They are free from defects if, at the time of delivery (see clause 3.5), they are suitable for ordinary use and are of a quality that the buyer can expect given the nature of the goods (see Section 434 (1) sentence 1 BGB).
2.4 No particular characteristics are warranted, and no guarantees are given for any specific quality of the purchased goods described by third parties (Section 434 (1) sentence 3 BGB). Express reference is made to clauses 1.3 and 4.2 of these Terms.
3. Performance
3.1 We will comply with delivery periods and dates for other services wherever possible. Delays, whether arising at our end or at our upstream suppliers, which we were unable to avert despite the care reasonable in the circumstances or reasonable economic effort, release us from compliance with the dates offered and entitle us to withdraw from the contract in whole or in part without any obligation to pay damages.
3.2 The provisions of Section 376 of the German Commercial Code (HGB) on fixed-date commercial purchases are excluded.
3.3 We are in default with our performance if stated delivery or performance dates have been exceeded by one month through gross negligence and the buyer has additionally sent us a written reminder after the end of that month.
3.4 Shipment is made carriage forward from our warehouse in Eggenfelden.
3.5 Partial deliveries are permitted.
3.6 Our deliveries are made exclusively ex works Eggenfelden, i.e. we fulfil our delivery obligation by making the goods available for collection by the forwarder or carrier named to us by the buyer, acting as the buyer’s agent in possession (Section 855 BGB) and vicarious agent (Section 278 BGB). Risk passes to the buyer at the time the goods are made available for collection. This also applies to carriage-paid deliveries or where transport and/or installation of the delivered goods is carried out by our staff.
3.7 If, in the absence of instructions from the buyer, we commission the forwarder or carrier, we act solely as the buyer’s agent. We assume no obligation whatsoever in connection with the forwarding or carriage contract. We are entitled to have freight costs advanced by us, or freight costs for which the commissioned forwarder or carrier may hold us liable, collected from the buyer by freight collect.
3.8 Any returns must be sent back to us CIF Eggenfelden.
4. Warranty and liability
4.1 For breaches of duty, or if the goods we deliver deviate from the condition described in clauses 2.2 and 2.3 of these contractual provisions, we are liable only if we committed the breach of duty or caused the deviation intentionally or through reckless conduct carried out in the knowledge that damage would probably result.
4.2 We accept no liability for the content of advertising statements, brochure information or similar information from third parties over whose content and wording we have no influence and which has come to the buyer’s attention. Anyone who nevertheless relies on such information to assert claims for damages must prove not only that they took note of it within the area of application of the BGB/HGB and any other relevant provisions within the EU, but also that it was solely and exclusively the information they object to that caused their decision to purchase. We reserve the right to rely on the terms of business and other terms of the party responsible for the information objected to, as well as on the legal provisions, trade customs and application of law of the jurisdiction of the country from which the advertising objected to originates and/or of the country in which the claimant became aware of it (see also clauses 1.3 and 2.4).
4.3 If we are liable for a breach of obligations under the purchase contract (Sections 433, 280 BGB), we may, at our option, either deliver a replacement free from defects, remedy the existing defect, or withdraw from the contract against issue of a corresponding credit note. We may, at our option, carry out any necessary work at the place of installation or, where applicable, request the carriage-paid return of the defective parts. If the defect complained of was caused by improper handling, exceptional stress, failure to observe installation, operating and/or maintenance instructions, or by interventions by unauthorised third parties, such as personnel without appropriate professional qualifications, there is no case of liability for material defects.
4.4 The buyer may demand subsequent performance, whereby we are entitled either to make two attempts to remedy the defect or to deliver goods free from defects. If subsequent performance fails, both the buyer and we may withdraw from the contract.
4.5 We have the right to refuse subsequent performance if it is only possible at disproportionate economic expense. In that case the buyer may demand a reduction of the purchase price.
4.6 Compensation for indirect damage or consequential damage caused by defects is expressly excluded in every case.
4.7 In the case of other contractual grounds for liability, too, we are liable only in the event of intent or if we, or persons for whom we are responsible, caused the damage through reckless conduct carried out in the knowledge that damage would probably result. In this case, too, our obligation is limited to compensation for the direct damage to the delivered goods.
4.8 The buyer forfeits the right to rely on a breach of contractual obligations or a non-conformity of the goods if it does not notify us within a reasonable period after the time it discovered or ought to have discovered it, specifying the nature of the non-conformity precisely (Section 377 HGB).
4.9 Claims arising from the contractual relationship become time-barred after two years for devices and after one year for consumables and wearing parts, in each case from the time the goods are made available for collection by the forwarder.
5. Obligations of the customer/buyer
5.1 The customer is obliged to inspect the goods, or have them inspected, without delay before delivery by the forwarder or carrier, and in any event within as short a period as the circumstances permit. Express reference is made to the commercial duty to inspect and give notice of defects under Section 377 HGB.
5.2 The customer is obliged to do everything necessary to safeguard its rights and, where applicable, our rights against the forwarders and/or transport companies used, and in particular to observe the notification, limitation and/or cut-off periods of transport law, such as the periods under Sections 407 et seq. and 438 HGB and, for cross-border transport, the periods under the CMR.
5.3 The buyer is obliged to secure its rights and, where applicable, our rights under the forwarding or carriage contract, and any possibility of recourse against the commissioned forwarders or carriers, by appropriate measures such as pertinent and precise entries in the consignment note, written notices of defects and the like. Where the forwarding or carriage contract was concluded by us (see clause 3.7 of these Terms), we hereby assign to the buyer the rights accruing to us as consignor thereunder, and the buyer accepts this assignment. We owe no further compensation; in particular, we are not obliged to assert claims against forwarders and/or carriers or to enforce them in court.
6. Terms of payment
6.1 Our prices are net prices exclusive of VAT. Even for confirmed orders, we reserve the right to a proportionate increase in prices if, within four months of the conclusion of the contract but before contractual delivery, material prices or wages rise, or cost factors change as a result of changes in currency parities or other changes in import/export costs.
6.2 Our invoices are payable strictly net without deduction within five working days of the invoice date.
6.3 If the buyer is in default of payment (Section 286 (2) no. 1 BGB), interest is payable on the amount due at nine percentage points above the applicable base rate (Section 288 (2) BGB). In addition, the buyer owes the flat-rate default charge under Section 288 (5) BGB. We are entitled to claim higher interest and further damages in addition.
6.4 We are not obliged to accept bills of exchange and/or cheques; otherwise they are accepted only on account of performance. Discount, collection and/or other charges are borne by the buyer.
6.5 Our representatives and employees are only authorised to accept payments, bills of exchange or cheques on presentation of a special collection authority.
6.6 The buyer may only set off undisputed claims or claims established by final judgment, or assert a right of retention on the basis of such claims.
7. Retention of title
7.1 We retain title to all goods delivered by us until the buyer has paid all claims arising from the business relationship. Where deliveries are made on open account, the retention of title also secures the balance.
7.2 The customer is entitled to dispose of purchased goods in the ordinary course of business. The buyer hereby assigns to us all claims arising from the resale or rental of goods subject to retention of title. We accept this assignment. Likewise, compensation claims against insurers or third parties arising from damage to goods subject to retention of title are hereby assigned to us. As long as the customer duly meets its payment obligations towards us, it remains entitled to collect the claims. If the customer fails to meet its payment obligations in whole or in part, it undertakes, on first request, to disclose to us the purchasers of our goods by name and address for service. We are entitled to notify the third party of the assignment and to collect the claims ourselves.
7.3 If the value of our security exceeds our claims by more than 20%, we will release the excess security.
7.4 Asserting the retention of title does not constitute withdrawal from the contract. If goods are taken back on the basis of the retention of title, we will be reimbursed a flat rate of 15% of the respective order price for the costs associated with the return. We reserve the right to assert claims for damages.
8. Final provisions
8.1 The law of the Federal Republic of Germany applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
8.2 The place of performance for all services under the contractual relationship, including the take-back of packaging under the German Packaging Act (VerpackG), is 84307 Eggenfelden. The exclusive place of jurisdiction for all disputes arising from the contractual relationship is Landshut. We are also entitled to bring an action against the buyer at its general place of jurisdiction.
8.3 Should any of the above provisions be or become invalid, the validity of the remaining provisions and of the contract shall not be affected. The contracting parties undertake to replace the invalid provision with a valid one that achieves its economic purpose.
This English version is provided for convenience. In the event of any discrepancy, the German version shall prevail.
Parts Depot GmbH
Pfarrer-Findl-Straße 40, 84307 Eggenfelden, Germany
