GENERAL TERMS AND CONDITIONS OF BUSINESS AND DELIVERY
RCW Reifengroßhandel GmbH | Siemensstrasse 30-32 | 61130 Nidderau | Germany
District court Hanau HRB 98477
Managing Directors: Alexander Robus, Johannes Kuderer
IdNr. DE349385636, ST#01924210178 (Hessen)
Tel: +49 6187 929611
§ 1 Scope, Form
(1) These General Terms and Conditions of Business and Delivery (GTC) apply to all our business relationships with our customers (“Buyer”). The GTC shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale and/or delivery of movable Goods (“Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the Buyer’s order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our Standard Terms shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent shall apply in every eventuality, even, for example, if we agree without reservation to make a delivery in full knowledge of the Buyer’s General Terms and Conditions of Business.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to evidence to the contrary, a written contract or written confirmation on our part shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Any statutory formal requirements and further proof, in particular in cases of doubt as to the legitimation of the declarant, remain unaffected.
(6) Any references to the applicability of statutory provisions shall only serve for the purposes of clarification. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these GTCs.
(7) The language of the contract is German.
§ 2 Conclusion of the Contract
(1) Our offers are non-binding and entail no obligation. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) When the Buyer places an order for Goods, this is considered a binding offer to enter into a contract with us. The Buyer must inform himself about any requirements before ordering, in particular about TÜV approvals and requirements of the vehicle manufacturer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt.
(3) Acceptance may be stated in writing (e.g. by way of an order confirmation) or by delivering the Goods to the Buyer.
(4) Contract documents such as order confirmations, delivery notes, collections, receipts and invoices etc. are sent digitally by e-mail in an environmentally friendly manner.
§ 3 Delivery, Delivery Period and Delay in Delivery
(1) Unless otherwise agreed, our deliveries are ex warehouse, without packaging. Insofar as our own packaging and means of transport are used, we reserve the right to charge the Buyer for the costs or rent incurred by us in the event of late return, i.e. if the usual unloading time is exceeded and the packaging, loading equipment or Goods are returned late as a result. If the packaging is lost, the price for the replacement will be charged.
(2) The delivery period shall be agreed individually or stated by us upon acceptance of the order. Statements of delivery periods shall be approximate and non-binding, unless their bindingness has been expressly assured.
(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of performance), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the delivery cannot be made within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any considerations already made by the Buyer shall be refunded immediately. For these purposes, the following, in particular, shall be considered “Service Non-Availability”: if our supplier is late in making its delivery to us, if we have made a congruent transaction to cover our expected orders, if neither our supplier nor we are responsible for the delay, or if we are not otherwise obliged to procure the delivery in that particular instance.
(4) The statutory provisions shall apply as to the occurrence of default in delivery on our side. In any case, the Buyer must first issue us a reminder.
(5) The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
(6) Cases of force majeure (as such circumstances and occurrences which cannot be prevented by the diligence of proper business management) suspend the contractual obligations of the parties for the duration of the disruption and the extent of its effect. If delays resulting therefrom exceed the period of 6 weeks, both contracting parties shall be entitled to withdraw from the contract with regard to the affected scope of performance. Other claims do not exist.
(7) This shall also apply if force majeure or equivalent circumstances occur at our suppliers.
§ 4 Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery shall be ex works, which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the Goods will be shipped to another destination (“Sales by Dispatch”). Unless otherwise agreed, we are entitled to ourselves determine the type of shipment (in particular, the transport company, shipping method, and packaging). We are entitled to make partial deliveries at any time.
(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest when the good are handed over to the Buyer. However, in the event of Sales by Dispatch, the risk of accidental loss and accidental deterioration of the Goods and the risk of delay shall pass to the Buyer once the Goods are handed over to the forwarding agent, carrier or other person or organisation carrying out the shipping. If acceptance of the Goods has been agreed upon, this shall determine the point at which risk is transferred. In all other respects, the statutory provisions under the law for work contracts and services shall apply to any agreed acceptance of the Goods. Handover or acceptance shall be deemed rendered even if the Buyer fails to take receipt of the delivery.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
§ 5 Prices and Payment Terms
(1) Unless otherwise agreed in individual cases, our current prices at the time of the order shall apply, ex works, plus statutory VAT.
(2) In the case of Sale by Dispatch (§ 4 para. 1), the Buyer shall bear the costs of transport from the warehouse and the costs of any transport insurance requested by the Buyer. Any duties, fees, taxes and other official levies are to be paid by the Buyer. In the event of agreed freight-free delivery, the prices quoted by us shall be based on the freight and ancillary charges applicable at the time of the order. Freight or ancillary charge rates for our deliveries will be adjusted at the expense of the customer if they change at the time of delivery, without the Buyer being entitled to a right of withdrawal in this respect.
(3) In the case of partial deliveries, each delivery may be invoiced separately.
(4) Unless otherwise agreed, our invoices are due for payment immediately and without deduction. However, even in the context of an ongoing business relationship, we are entitled at any time to only make a delivery, in whole or in part, against prepayment.
(5) Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. The purchase price shall accrue interest at the currently applicable statutory default interest rate for the duration of the default. We reserve the right to claim further damages for delay. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) remains unaffected.
(6) The Buyer shall only be entitled to rights of set-off or retention insofar as its claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected, in particular in accordance with § 2. § 7 para. 12 sentence 2 of these terms and conditions.
(7) If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). For contracts made for the manufacture of custom items, we can declare such withdrawal immediately, with the statutory provisions concerning the dispensability of setting a deadline remaining unaffected.
(8) As long as the customer is in arrears with payment of an invoice in whole or in part, our obligation to deliver shall be suspended.
(9) The deadline for the SEPA pre-notification is shortened to 2 calendar days. The announcement of the direct debit via SEPA direct debit is made on the invoice.
(10) We are not obliged to accept checks or bills of exchange.
(11) If payment of the invoice by direct debit is agreed between the customer and us and a return debit note is issued, a processing fee of €10.00 will be charged. This fee is payable by the ordering party in addition to the fees charged by the respective credit institution.
(12) For any errors in our lists and invoices, we reserve the right of complaint and subsequent invoicing.
§ 6 Reservation of Proprietary Rights
(1) We retain title to the Goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The Goods which are subject to retention of title may not be pledged or assigned as collateral to third parties until full payment of the secured claims. The Buyer must notify us in writing without delay if a request is made to open insolvency proceedings, or if third parties gain access (e.g. seizures) to the Goods belonging to us.
(3) If the Buyer acts in violation of the contract, especially in the case of non-payment of the purchase price due, we are entitled, under the statutory provisions, to withdraw from the contract and/or to demand the return of the Goods thereunder on grounds of retention of title. Any demand for the return of Goods shall not at the same time constitute a declaration of withdrawal from the contract; rather, we are entitled to demand only the return of the Goods and to reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may assert these rights only if we have previously set the Buyer an appropriate deadline for payment to no avail or if the setting of such a deadline may be waived under provisions of the law.
(4) Until revocation outline in (c) below, the Buyer is authorised to further sell the Goods that are subject to retention of title or to process them further in the ordinary course of business. In such a case, the following provisions shall also apply.
(a) The retention of title shall extend to the full value of the products that result from the processing, mixing or combination of our products, and we shall be deemed the manufacturer. If, in the case of the processing, mixing or combination of the Goods with Goods of third parties, their rights of ownership endure, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined Goods. In all other respects, the same shall apply to the resulting product as to the Goods that are delivered subject to retention of title.
(b) The Buyer hereby assigns to us, by way of security, any and all claims against third parties resulting from the resale of the Goods or of the product in full, or to the extent of any joint ownership in accordance with the preceding paragraph. We hereby accept this assignment. The provisions set out in para. 2 shall also apply with regard to the assigned claims.
(c) In addition to us, the Buyer shall remain entitled to collect these claims. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not terminate the retention of title by exercising a right pursuant to para. (3). If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In addition, we are entitled in such a case to revoke the Buyer’s authority to further sell and process the Goods that are under retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the Buyer’s request.
§ 7 Complaints, Claims for Defects by the Buyer
(1) Goods delivered by us cannot be returned. This does not apply if the Goods are defective. If a return is made by way of exception, this is only possible within 4 weeks after invoicing in the original condition. The original invoice net price plus the applicable statutory VAT will be credited minus the currently applicable fees for retrieval costs and restocking.
(2) The tyres supplied may be up to 3 years old and are considered new tyres. No special labelling of the Goods is required up to an age of 3 years from the time of production. We do not recognize DOT complaints within this period. See also the current provisions of the BRV:
(3) The statutory provisions shall apply to the rights of the Buyer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the statutory special regulations shall remain unaffected when the unprocessed Goods are finally delivered to a consumer, even if the consumer has processed them further (supplier recourse in accordance with §§ 478 BGB). Claims arising from recourse against suppliers are excluded if the defective Goods have been further processed by the Buyer or another company, e.g., through being installed in another product.
(4) The basis of our liability for defects is above all the agreement reached on the quality of the Goods. All product descriptions and manufacturer information which are the subject matter of the individual contract or which were made public by us at the time of conclusion of the contract (in particular, in catalogues or on our internet homepage) shall be deemed to constitute an agreement on the condition and quality of the Goods.
(5) Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 para. 1 sentence 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the purchaser has not drawn our attention as being decisive for his purchase.
(6) As a matter of principle, we shall not be liable for defects of which the Buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the Buyer’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of Goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later point in time, this must be reported to us immediately in writing. In any case, obvious defects must be reported in writing within 5 working days from delivery and defects not recognisable during inspection within the same period from discovery. If the Buyer fails to carry out a proper inspection and/or report a defect, then any liability on our part for the defect which was not reported, not reported in time or not properly reported shall be excluded, in accordance with the statutory provisions.
(7) We will complain to the manufacturer about all Goods purchased from us. We will pass on the Goods complained about to the manufacturer for inspection. Any replacement delivery or compensation is only to be paid by us after the manufacturer has completed the inspection. Advance performance by us for complaints that have not yet been acknowledged or will be acknowledged at a later date shall not constitute acknowledgement of the complaint. We reserve the right to make a subsequent calculation. In the case of wear parts such as tyres, the purchaser must either contribute to the costs in accordance with the actual wear and tear or accept compensation for the use made of them.
(8) In order to be able to assert a complaint, the currently valid complaint forms must be filled out by the Buyer and the necessary attachments must be attached. Further information on the process and the required documents can be viewed at www.reifen-wolf.de/service/reklamation/. If the complaint is accepted, the Buyer will not incur any costs. In the event of a rejection of the complaint, we reserve the right to charge a processing fee in accordance with the complaint confirmation. The Buyer is obliged to hand over the Goods to be complained about to the Seller at his own expense at the same time as the complaint, so that the Seller can submit the Goods to the manufacturer for complaint.
(9) Not eligible for complaint is any kind of wear and tear caused by normal use due to special driving characteristics, modes of use, places of use or similar causes.
(10) We or the manufacturer are entitled to cut / open / destroy the Goods to be complained about for the purpose of determining the defect.
(11) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). Our statutory right to refuse supplementary performance remains unaffected. In the case of a replacement delivery, the Buyer shall return the defective products as required by law. The supplementary performance does not include the removal of the defective item or the re-installation if we were originally not obliged to install the product.
(12) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a reasonable portion of the purchase price relative to the defective part of the delivery.
(13) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not dismantling and installation costs) in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the Buyer for the costs arising from the unjustified request to remedy the defect (in particular, inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
(14) If the supplementary performance has failed or a reasonable deadline to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. There shall, however, be no right to withdraw if the defect is negligible.
(15) Claims of the Buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.
(16) The assignment of warranty claims is excluded.
§ 8 Other Liability
(1) Insofar as nothing to the contrary is stipulated in these GTCs, including the following provisions, we shall assume liability in the event of a breach of our contractual and non-contractual duties in accordance with the relevant statutory regulations.
(2) We shall be liable for damages – irrespective of their legal grounds – in the event of intent or gross negligence, within the scope of fault-based liability. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
(a) for damage resulting from injury to life, limb or health,
(b) for damages arising from the breach of an essential contractual duty (an obligation whose fulfilment is essential to the proper carrying out of the contract and which the contracting partner often relies on and may rely on); in this case, however, our liability is restricted to reimbursement for damage which is foreseeable and typically occurring.
(3) The limitations of liability provided for in para. 2 shall also apply to third parties and to breaches of duty by persons (also in their favour) for whose fault we are responsible in accordance with statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed and for claims of the purchaser under the Product Liability Act.
(4) In the event of any breach of duty other than those which relate to a defect, the Buyer shall only be entitled to withdraw from or terminate the contract if we are responsible for said breach of duty. The Buyer shall have no free right of termination (in particular, pursuant to §§ 650, 648 BGB). In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Statue of Limitations
(1) Deviating from § 438 para. 1 No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title is twelve months from delivery/receipt of the Goods. Insofar as acceptance has been agreed, the period of limitation shall commence upon acceptance.
(2) The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages of the Buyer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Product Changes
The Buyer is obliged to sell the Goods to third parties as classified and to explain to his customers the exact nature in technical details of these Goods. Our Goods to which modifications have been made since delivery or whose quality has deteriorated must not be used on the road or delivered to third parties. In the event of a breach of the obligation, the Buyer must pay a contractual penalty to be approved by us at our reasonable discretion, which in the event of a dispute will be determined by the Hanau Regional Court. Furthermore, he shall immediately compensate us for all damages resulting from his breach of this obligation, including indirect consequential damages.
§ 11 Special Tyres or Goods with Special Properties / Special Identifications / Releases
(1) In order to avoid serious road accidents, Goods with special characteristics may only be fitted to vehicles after the product characteristics and manufacturer’s approvals have been checked by certified specialist dealers.
(2) When selling the aforementioned Goods, the Buyer shall expressly draw attention to the tyre-, rim-, Goods-specific characteristics/special designations/approvals and dangers.
(3) The resale of Goods of the aforementioned type to end consumers whose vehicles have not been approved by the manufacturer is prohibited.
(4) Further product information regarding the aforementioned Goods can be obtained from the respective manufacturers, as well as from the brochures, product and assembly instructions available on the manufacturers’ websites. A corresponding brochure / information or expert opinion is to be handed over to each end user when purchasing the aforementioned Goods.
(a) The supplementary information on the side wall of the tyre must be observed and the end user must also be made aware of this.
(b) For rims and complete wheels, the applicable requirements and restrictions can always be found in the associated TÜV report or the ABE. Any advertisements in the web shop must be checked for correctness and approval.
§ 12 Triangular Deals (B2B)
(1) The Goods sold shall remain our property until full payment of our claims arising from the business relationship with our customer. This applies in particular to the delivery of Goods for third-party invoices. The Goods remain our property until full payment has been made by our customer, irrespective of the payment made by the purchaser to our customer.
(2) The power of disposal over the Goods remains with us until delivery to the customer. A redirection of the Goods or a prevention of the delivery is carried out exclusively by us.
(3) Our customer is obliged to provide the sales tax identification number to check its customers.
(4) If our customer delivers to end consumers, the delivery is subject to sales tax.
(5) Should we incur damages due to an infringement and become liable to pay, the Buyer shall be obliged to pay us damages in the full amount plus the costs of legal action.
§ 13 Competitions and other Prizes
(1) For tax reasons, the Seller cannot make a flat rate according to the provisions of §§ 37a, 37b EStG. For clarification of the tax implications for our client’s business or their employees, the client must consult their own tax advisor.
(2) Registration for competitions must be made in text form. Participation is only valid with a confirmation of participation from the Seller.
(3) The Seller reserves the right to change the conditions of participation at any time. Furthermore, the Seller reserves the right to terminate or interrupt the competition or the prize draw at any time for good cause without prior notice. This applies in particular to such reasons that would disrupt or prevent a scheduled course of the competition or the raffle. Insofar as such termination is caused by the conduct of a participant, the Seller is entitled to demand compensation from this person for the damage incurred.
(4) In the event of a violation of the conditions of participation or in the event of fraud / deception, the Seller reserves the right to exclude participants from competitions.
(5) A cash payment of the prizes or a possible replacement prize is not possible under any circumstances.
(6) Legal recourse is excluded.
§ 14 Copyrights
All rights are reserved. Text, images, sound, graphics, animations and videos as well as their arrangement on our website are protected by copyright and other protective laws. The content of our website may not be copied, distributed, modified or made accessible to third parties for commercial purposes. Some images on our website are subject to third-party copyrights. Our website does not grant any licence to use the intellectual property of us or third parties.
§ 15 Data Protection
The Seller shall comply with the provisions of data protection law, in particular those of the EU General Data Protection Regulation and the Federal Data Protection Act. Further information can be found in the data protection notice.
§ 16 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTCs and to the contractual relationship between us and the Buyer, to the exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction – including international jurisdiction – for all disputes arising directly or indirectly from the contractual relationship shall be Hanau. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Buyer. Statutory provisions which have precedence, in particular regarding exclusive responsibilities, remain unaffected.
Status: April 2021