GENERAL TERMS AND CONDITIONS OF BUSINESS (T&Cs) OF THE COMPANY TURBO-MOT GMBH
VALID AS OF DECEMBER 2021
SECTION 1 SCOPE
SECTION 2 OFFER AND CONCLUSION OF CONTRACT
1. All offers made by the Company are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Company may accept orders or commissions within fourteen days of receipt.
2. Additions and amendments to the agreements made, including these General Terms and Conditions of Business, must be made in writing in order to be effective. With the exception of managing directors or authorised signatories, the Company’s employees are not entitled to make verbal agreements deviating from this. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
3. Unless otherwise agreed, information provided by the Company on the work to be performed (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality characteristics, but descriptions or identifications of the delivery or service. Deviations customary in the trade, which are made on the basis of legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible insofar as they do not adversely affect the usability for the contractually intended purpose.
4. The Company reserves the right to make changes to the design and form of the work to be performed during the delivery period, provided that such changes do not negatively affect the suitability of the work to be performed for the purpose desired by the Customer.
5. The Company retains ownership, all copyrights and other industrial property rights to all documents made accessible to the Clients. Without the express consent of the Company, the documents provided may not be used outside the contractual relationship, in particular they may not be reproduced or made accessible to third parties. At the request of the Company, the Client shall return to the Company all documents with which it has been provided.
SECTION 3 ORDERS FOR MAINTENANCE / REPAIRS
1. Insofar as the scope of the respective repair work/repairs for the subject matter of the contract is not defined by the Client, the Company shall determine the scope of performance at its reasonable discretion and taking into account the interests of the Client. If it only becomes apparent during the processing of the order that the repair is impossible due to the defects in the subject matter of the contract, the Company shall be entitled to invoice the Client for the work performed up until the time this has become established. If it only becomes apparent during the processing of the order that (further) repair is uneconomical, the Company will inform the Client of this immediately in order to bring about a binding decision by the Client on how to proceed. If the Client decides not to allow the contract to continue because it is uneconomical, the Company shall be entitled to remuneration for the work carried out up to that point and reimbursement of the expenses not included in the remuneration.
2. The Company shall not be liable for errors or additional expenses resulting from faulty documents, drawings, samples or other information provided by the Client.
SECTION 4 DEPOSIT ON USED PARTS (TURBOCHARGERS)
The Company shall be obliged to return any deposit on used parts to the Client if the Client delivers a used turbocharger which is of the same type and capable of being repaired within 6 months of the Company supplying a turbocharger. Section 377 of the German Commercial Code (HGB) shall not apply to the delivery of used parts. If a used part of identical type and capable of being repaired is not delivered to the Company within the specified period, the above claim of the Client shall lapse without replacement; at the same time, the Company’s claim against the Client for delivery of the used part shall lapse.
SECTION 5 DELIVERY AND DELIVERY PERIODS
1. Deadlines and dates for deliveries and services promised by the Company are always only approximate, unless a fixed deadline or date has been expressly agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
2. The Company may – without prejudice to its rights arising from default on the part of the Client – demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the Client fails to meet its contractual obligations towards the Company.
3. The Company shall not be liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events unforeseeable at the time of concluding the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Company is not responsible. Insofar as such events make it significantly more difficult or impossible for the Company to deliver or perform and the hindrance is not only of a temporary nature, the Company is entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Client cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to the Company.
4. If the Company is in default with a delivery or service, or if it becomes impossible for the Company to perform a delivery or service, for whatever reason, the Company’s liability for damages shall be limited in accordance with Section 10 of these General Terms and Conditions.
SECTION 6 PLACE OF PERFORMANCE, SHIPPING AND TRANSFER OR RISK
1. Unless otherwise agreed, the place of performance for all obligations arising from the contractual relationship shall be the registered office of the Company. If the Company is also responsible for the installation, the place of performance shall be the place where the installation is to take place as agreed.
2. The method of shipping and packaging shall be at the discretion of the Company.
3. The risk shall pass to the Client at the latest when the item being delivered is handed over (with the start of the loading process being decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Company has taken on other services (e.g. shipping or installation). If shipping or handover is delayed as a result of circumstances caused by the Client, the risk shall pass to the Client from the day on which the item being supplied is ready for dispatch and the Company has notified the Client of this.
4. Storage costs after transfer of risk shall be borne by the Client.
5. A consignment will only be insured by the Company against theft, breakage, transport, fire and water damage or other insurable risks at the express request and expense of the Client.
SECTION 7 PRICES AND TERMS OF PAYMENT
1. Prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are quoted in EURO ex works plus packaging, the statutory value added tax, customs duty in the case of export deliveries as well as fees and other public charges.
2. Insofar as the Company accepts (used) parts in payment, the price offered by the Company for these parts shall only apply subject to the condition that such parts can be repaired.
3. If the agreed prices are based on the Company’s list prices and the delivery is not to be made until more than four months after conclusion of the contract, the Company’s list prices valid at the time of delivery shall apply.
4. The Company may reasonably increase the prices offered if the Company’s production costs (in particular material and personnel costs) have increased in an unforeseeable and unavoidable manner between the conclusion of the contract and delivery/performance of the service. In this case, the Company will inform the Client immediately after becoming aware of the price increase. The Customer is entitled to withdraw from the contract within a period of two weeks after this information, insofar as the contractual service has not yet been rendered.
5. The Company shall be entitled to perform or render outstanding deliveries or services only against reasonable advance payment or provision of security; this shall be permissible in particular in the case of orders involving extensive expenditure on materials or long-term contractual services as well as if the Company becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Client and as a result of which payment of the Company’s outstanding claims by the Client arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is jeopardized.
6. Invoice amounts are to be paid by the Client within 14 days without any deduction, unless otherwise agreed in writing. The date of receipt by the Company is decisive for the date of payment. Cheques shall only be considered as payment after they have been honoured. If the Client does not pay by the due date, the outstanding amounts shall be subject to interest from the due date in accordance with the statutory provisions; the right to claim higher interest and further damages in the event of a delay shall remain unaffected.
7. The Client is only entitled to assign claims arising from contracts with the Company with the prior written consent of the Company.
8. Unless expressly agreed otherwise, cash discounts may not be deducted from the invoice amount. Cheques and bills of exchange of the Client shall only be accepted by the Company after prior agreement – for the purpose of payment – provided they are honoured in a timely and proper manner. Any collection and discount charges incurred shall be borne by the Client.
SECTION 8 LIEN – REALIZATION OF ASSETS – STORAGE CHARGE
1. The Company is entitled to a legal lien on all assets of the Client which are processed by the Company with the knowledge and intention of the Client. The right of lien extends to all claims of the Company which are also subject to the retention of title pursuant to Section 11.
2. If the Client is more than 2 months in arrears with a due payment, the Company shall be entitled, after prior written notice and setting a further deadline of 4 weeks, to realize the value of the pledged asset by auction and, if a market price is available, by private sale at the best possible price. In addition to its principal claim and the accrued interest, the Company is also entitled to deduct the costs incurred by the realization of the asset from the proceeds of the realization. The Client shall be entitled to any proceeds of realization in excess thereof.
SECTION 9 WARRANTY
1. The warranty period is one year from delivery or, if acceptance is required, from acceptance.
2. The items supplied shall be carefully inspected immediately after delivery to the Client or to the third party designated by the Client. With regard to obvious defects or other defects which would have been recognisable in the course of an immediate thorough inspection, they shall be deemed to have been approved by the buyer if the Company does not receive written notice of the defects within seven working days of delivery. With regard to other defects, the items supplied shall be deemed to have been approved by the buyer if notice of the defect is not received by the Company within seven working days after the time at which the defect became apparent; however, if the defect was already apparent to the Client at an earlier time during normal use, this earlier time shall be decisive for the start of the period for giving notice of the defect. At the request of the Company, a supplied item subject to complaint shall be returned to the Company carriage forward. In the event of a justified complaint, the Company shall reimburse the costs of the most favourable shipping route; this shall not apply insofar as the costs increase because the item supplied is located at a place other than the place of intended use. In the case of overnight express deliveries, transport damage must be reported to the Company by 11:00 a.m. of the following working day.
3. In the event of defects in components from other manufacturers which the Company cannot rectify for licence-related or any other reasons, the Company shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. Warranty claims against the Company shall only apply in the event of such defects under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, such as for reasons of insolvency. The limitation period for the relevant warranty claims of the Client against the Company shall be suspended for the duration of the legal dispute.
4. The warranty shall not apply if the Client modifies the item supplied or has it modified by a third party without the Company’s consent, making it impossible or unreasonably difficult to remedy the defect. In any case, the Client shall bear the additional costs of remedying the defect resulting from the change.
5. Statutory rights of recourse of the Client shall only apply insofar as the Client has not made any agreements with its customer extending beyond the statutory claims and rights for defects.
6. Any supply of used items by the Company agreed with the Client shall take place excluding any warranty for material defects.
7. If the inspection of a notification of defect reveals that there was no defect covered by warranty, the Company shall charge the costs of the inspection and, if necessary, repair at its respective valid cost rates; in this case, the costs of sending the item subject to complaint shall not be reimbursed and the return to the Client shall be at the Client’s expense and risk.
8. Insofar as the Client commissions the tuning of contractual objects or the processing of classic car parts, the Company’s liability for material defects shall be limited to the proper execution of this work. The Company shall only be liable for the success of contractual work and services if this has previously been agreed in writing.
9. In order to assert warranty claims, it is necessary to send the goods subject to complaint to the Company. The goods shall be marked as a warranty case. Furthermore, the Customer is obliged to describe, at least in text form, how the alleged defect manifests itself. The warranty claim form provided by the Company should be used for this purpose. The marking of the goods is intended to distinguish between defective goods and incoming exchange parts for reconditioning in the incoming post. By sending in the defective goods, the claimant becomes entitled to a written report of the findings, providing a technical opinion on the cause of the alleged defect.
10. Any objections to our diagnostic reports must be sent to the Company in text form within six weeks of receipt of the findings and should include a technical justification. Any objections submitted later than this period do not have to be considered by the Company out of court.
11. Warranty claims shall be deemed to be barred by lapse of time if they are not notified in writing within four months after the date of the defect being discovered.
SECTION 10 COMPENSATION
1. The Company’s liability for compensation, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with this Section 10.
2. The Company shall not be liable in the event of simple negligence on the part of its management bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the item supplied on time, its freedom from defects that impair its functionality or usability more than insignificantly, as well as advisory, protective and custodial obligations that are intended to enable the Client to use the item supplied in accordance with the contract or are intended to protect the life or limb of the Client’s personnel or to protect the Client’s property from significant damage.
3. Insofar as the Company is liable on the grounds for damages in accordance with Section 7.2, this liability shall be limited to damages which the Company foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the item supplied are also only eligible for compensation insofar as such damage is typically to be expected when the item supplied is used for its intended purpose. If part of the damage liable to compensation consists of costs for the installation and removal of parts on motor vehicles or repair work, the Company shall consider an expense allowance of up to EUR 40.00 net per working hour plus the applicable VAT to be reasonable. It is further agreed that in the above case the appropriateness of the working time spent shall be determined on the basis of software based on TecDoc from the company TecAlliance GmbH in its current version.
4. In the event of liability for simple negligence, the Company’s liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 10 million (in words: ten million EUROs) per case of damage, even if it involves a breach of material contractual obligations.
5. The above exclusions and limitations of liability apply to the same extent in favour of the management bodies, legal representatives, employees and other vicarious agents of the Company.
6. Insofar as the Company provides technical information or acts in an advisory capacity and this information or advice is not within the scope of its contractually agreed services, this shall be performed free of charge and to the exclusion of any liability.
7. The above limitations of liability do not apply to the Company’s liability for intentional conduct, for guaranteed quality characteristics, for injury to life, limb or health or under the German Product Liability Act.
8. Insofar as the Company’s liability is limited as above, claims against the Company shall become barred by lapse of time within 12 months. This shall also apply to claims for defects for which the Company is not responsible, unless they concern buildings or an item supplied which was used for a building in accordance with its customary manner of use and caused the building to be defective. In all other respects, the statutory imitation periods shall apply. Actions of subsequent performance shall not trigger a new limitation period.
SECTION 11 RETENTION OF TITLE
1. The following agreed retention of title is intended to secure all current and future claims of the Company against the Client arising from the supply relationship between the contractual parties, including balance demands from a current account relationship limited to this supply relationship.
2. The goods supplied by the Company to the Customer shall remain the property of the Company until all secured claims have been paid in full.
3. The Customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the commencement of realization proceedings (Section 11.8). Pledges and transfers of ownership by way of security to third parties are not permitted.
4. If the goods subject to retention of title are processed by the Customer, it is agreed that the processing shall be carried out in the name and for the account of the Company as manufacturer and that the Company shall acquire direct ownership or – if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that the Company does not acquire such ownership, the Customer hereby assigns to the Company by way of security its future ownership or – in the above-mentioned proportion – co-ownership of the newly created item. If the goods subject to retention of title are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Customer shall, insofar as it owns the main item, transfer to the Company pro rata co-ownership of the uniform item in the ratio specified in sentence 1.
5. In the event of resale of the goods subject to retention of title, the Customer hereby assigns to the Company by way of security the resulting claim against the purchaser – in the event of co-ownership of the Company in the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims that take the place of the goods subject to retention of title or otherwise arise with regard to these goods, such as insurance claims or claims in tort in the event of loss or destruction. The Company revocably authorizes the Customer to collect the claims assigned to the Company in its own name. The Company may only revoke this direct debit authorization in the event of realization of the value.
6. If third parties access the goods subject to retention of title, in particular by way of seizure, the Customer shall immediately draw their attention to the Company’s ownership and inform the Company thereof so that it may enforce its ownership rights. If the third party is not in a position to reimburse the Company for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable to the Company for such costs.
7. The Company shall release the goods subject to retention of title and the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 25%. The selection of the items to be released thereafter is a matter for the Company.
8. The assertion of the retention of title or a demand by the Company to surrender the goods based thereon shall only be deemed to be a withdrawal from the contract if the Company expressly declares this.
SECTION 12 MISCELLANEOUS
1. If the Client is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Company and the Client shall be, at the Company’s discretion, the Company’s registered office or the registered office of the Client. However, in such cases the registered office of the Company shall be the exclusive place of jurisdiction for actions against the Company. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
2. The legal relations between the Company and the Client shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
T&Cs of TURBO-MOT GmbH 2023
TABLE OF CONTENTS
- SECTION 1 SCOPE
- SECTION 2 OFFER AND CONCLUSION OF CONTRACT
- SECTION 3 ORDERS FOR MAINTENANCE / REPAIRS
- SECTION 4 DEPOSIT ON USED PARTS (TURBOCHARGERS)
- SECTION 5 DELIVERY AND DELIVERY PERIODS
- SECTION 6 PLACE OF PERFORMANCE, SHIPPING AND TRANSFER OR RISK
- SECTION 7 PRICES AND TERMS OF PAYMENT
- SECTION 8 LIEN – REALIZATION OF ASSETS – STORAGE CHARGE
- SECTION 9 WARRANTY
- SECTION 10 COMPENSATION
- SECTION 11 RETENTION OF TITLE
- SECTION 12 MISCELLANEOUS