General Terms and Conditions of Delivery and Business (GTC) of FK Motors Europe GmbH
1) The listed and following General Terms and Conditions of Delivery and Business (as of August 1st, 2018) are the basis and part of all goods delivery and/or purchase contracts between FK Motors Europe GmbH, Am Markt 6, 29640 Schneverdingen, VAT identification number: DE317317510, commercial register: district court of Lüneburg – HRB 207452, telephone: 0049-5193-986873, fax: 0049-5193-9868827, hereinafter referred to as FK Motors Europe GmbH and Entrepreneur
hereinafter referred to as "buyer".
2) These terms of sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB. Entrepreneur i. s.d. Terms and conditions are natural or legal persons or partnerships with legal capacity, with whom a business relationship is entered into, who act in the exercise of a commercial or self-employed professional activity.
3) These terms and conditions of sale and delivery apply exclusively and without exception; conflicting or deviating conditions will not be recognized unless FK Motors Europe GmbH expressly agrees to their validity in writing. Our terms and conditions of sale and delivery also apply if we make the delivery to the buyer without reservation in the knowledge of conflicting or deviating terms and conditions of the buyer.
4) All agreements made between FK Motors Europe GmbH and the buyer for the purpose of executing a contract are set out in writing in this contract.
5) These general terms and conditions of delivery and business also apply to all future transactions of FK Motors Europe GmbH with the buyer, unless FK Motors Europe GmbH indicates that new or different provisions should apply.
2 Conclusion of contract
1) If an order is to be regarded as an offer according to § 145 BGB, FK Motors Europe GmbH can accept it within two weeks. By placing an order for goods, the buyer makes a binding declaration that he wants to purchase the goods ordered from FK Motors Europe GmbH subject to the above general terms and conditions of sale and delivery. FK Motors Europe GmbH can declare acceptance of these either in writing or by delivering the goods to the buyer.
2) All offers made by FK Motors Europe GmbH to the customer are non-binding. Technical changes as well as changes in shape, color and/or weight are reserved within reasonable limits.
3) The conclusion of the contract is subject to the proviso that FK Motors Europe GmbH is supplied correctly and on time by its supplier. This only applies in the event that FK Motors Europe GmbH is not responsible for the non-delivery, in particular if FK Motors Europe GmbH has concluded a congruent hedging transaction with its supplier. The buyer will be informed immediately by FK Motors Europe GmbH about the non-availability of the service. Any consideration that has already been made will be refunded to the buyer immediately if it has already been made.
3 Documents provided
1) All documents provided to the customer in connection with the placing of the order, such as e.g. B. calculations, images etc., we reserve all property rights and copyrights. The documents provided may not be made accessible to third parties unless FK Motors Europe GmbH gives its express written consent. Furthermore, FK Motors Europe GmbH reserves the right to reclaim the documents provided if the order is not accepted ( 2).
4 Prices / Terms of Payment
1) Unless otherwise agreed in writing or unless otherwise stated in the order confirmation, all prices of FK Motors Europe GmbH apply ex warehouse of FK Motors Europe GmbH. The prices are exclusive of the statutory value-added tax. This is shown separately on the invoice at the statutory rate on the day of invoicing. Shipping costs will be billed separately to the buyer. The same applies if the buyer requests additional on-site services.
2) The purchase price must be paid exclusively to the account specified in the invoice. The deduction of cash discount is only permissible with a special written agreement.
3) All price and discount information published by FK Motors Europe GmbH on the Internet, brochures or other advertising media is subject to errors. All offers from FK Motors Europe GmbH are non-binding. All agreements should always be made in writing.
4) For deliveries within the European Union (EU) and third countries outside the EU, the prices will be reduced by the German sales tax contained therein; The prerequisite for this is a corresponding and customs-relevant confirmation of arrival from the buyer or a forwarding agent. All country-specific taxes and duties are to be paid by the buyer.
5) Unless otherwise agreed, the purchase price is due and payable immediately upon receipt of the goods. The purchase price is to be paid by bank transfer to the account of FK Motors Europe GmbH shown on the invoice. Unless otherwise agreed, the purchase price is to be paid within 10 days of delivery. Checks are not accepted. Interest on arrears will be charged at a rate of 8% pa above the respective base interest rate. FK Motors Europe GmbH reserves the right to claim higher damages caused by delay.
6) The buyer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by FK Motors Europe GmbH. The buyer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5 Delivery / delivery periods / default of acceptance
1) Delivery dates or delivery periods, which can be agreed as binding or non-binding, must be stated in writing. All delivery dates and/or periods are non-binding, unless a period or date is expressly designated as binding and agreed.
2) FK Motors Europe GmbH endeavours to deliver goods that can be sent by post within 10 working days of the order being placed. When shipping vehicles, the carrier will contact the buyer to arrange a delivery date.
3) If no specific delivery date or delivery period is agreed between the contracting parties, 30 working days shall apply to FK Motors Europe GmbH as a reasonable period for performance/delivery of the goods.
4) In the event of default, the liability of FK Motors Europe GmbH is limited to the statutory provisions if the default in delivery is due to an intentional or grossly negligent breach of contract for which FK Motors Europe GmbH is responsible. FK Motors Europe GmbH is responsible for any fault on the part of its own representatives or vicarious agents employed by FK Motors Europe GmbH. If the delay in delivery is due to a grossly negligent breach of contract for which FK Motors Europe GmbH is responsible, liability for damages is limited to the foreseeable, typically occurring damage.
5) FK Motors Europe GmbH is also liable in accordance with the statutory provisions if the delay in delivery for which it is responsible is based on the culpable violation of an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
6) FK Motors Europe GmbH is liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed transaction within the meaning of Section 286 Paragraph 2 No. 4 BGB or Section 376 HGB. It is also liable under the statutory provisions if, as a result of a delay in delivery for which it is responsible, the buyer is entitled to assert that his interest in further fulfilment of the contract has ceased to exist.
7) If the goods are sent to the buyer at his request, the risk of accidental loss or accidental deterioration of the goods passes to the buyer when the goods are sent to the buyer, at the latest when they leave the warehouse. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.
8) The handover is the same if the buyer is in default of acceptance.
9) If the buyer is in default of acceptance or culpably violates other obligations to cooperate, FK Motors Europe GmbH is entitled to demand compensation for the damage incurred, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the buyer at the point in time at which he is in default of acceptance or debtor.
1) Warranty claims of the buyer presuppose that he has duly fulfilled his obligations to examine and give notice of defects according to § 377 HGB.
2) If, despite all the care taken, the delivered goods have a defect that was already present at the time of the transfer of risk, FK Motors Europe GmbH will, at its discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. FK Motors Europe GmbH must always be given the opportunity to remedy the defect within a reasonable period of time. Claims for recourse remain unaffected by the above regulation without restriction.
3) If the supplementary performance fails three times, the buyer can generally demand a reduction in payment (reduction) or cancellation of the contract (withdrawal). In the event of only a minor breach of contract, in particular in the case of only minor defects, the buyer is not entitled to withdraw from the contract.
4) If the buyer is entitled to compensation for damage instead of performance or a claim for compensation for damage in addition to performance, compensation for damage is limited to foreseeable, typically occurring average damage, provided there is no intentional breach of duty.
5) FK Motors Europe GmbH provides a warranty for defects in the delivered goods for a period of 2 years from delivery. A warranty for used items is expressly excluded.
6) For the buyer, only the product description of the manufacturer applies as a matter of principle as agreed. Public statements, promotions or advertising by the manufacturer do not constitute contractual information on the quality of the goods. Technical changes and changes in shape, color and/or weight are reserved within reasonable limits.
7) If the buyer receives defective assembly instructions, FK Motors Europe GmbH is only obliged to deliver assembly instructions that are free of defects and only if the defect in the assembly instructions ultimately prevents proper assembly.
7 Limitations of Liability
1) FK Motors Europe GmbH is only liable in accordance with the statutory provisions if the buyer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of its representatives or vicarious agents. Insofar as there is no intentional breach of contract, the liability for damages is limited to the foreseeable, direct average damage typical of the contract. This also applies to non-intentional breaches of duty by legal representatives or vicarious agents. In the event of a slightly negligent breach of insignificant contractual obligations, liability on the part of FK Motors Europe GmbH is excluded.
2) The above limitations of liability do not apply to product liability claims by the buyer. Furthermore, the limitations of liability do not apply to bodily injury or damage to health attributable to FK Motors Europe GmbH or in the event of loss of life of the buyer.
3) Claims for damages by the buyer due to a defect expire one year after delivery of the goods. This does not apply if FK Motors Europe GmbH can be accused of fraudulent intent or gross negligence, or in the case of bodily injury or damage to health attributable to FK Motors Europe GmbH, or if the buyer dies.
8 Retention of title
1) FK Motors Europe GmbH retains ownership of the delivered item until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if FK Motors Europe GmbH does not expressly refer to this. FK Motors Europe GmbH is entitled to take back the purchased item if the buyer acts in breach of contract.
2) The buyer is obliged to treat the goods with care and to insure them against damage and loss. If maintenance and inspection work is required, the buyer must carry this out regularly at his own expense. In particular, the buyer is obliged to use and deploy the goods only in accordance with the operating instructions provided to him.
3) Until the goods have been paid for, the buyer is obliged to notify FK Motors Europe GmbH immediately of any access by third parties to the goods, for example in the event of a seizure, as well as any damage or destruction of the goods. He must also immediately notify FK Motors Europe GmbH of any change in ownership of the goods or his own change of residence.
4) FK Motors Europe GmbH is entitled to withdraw from the contract and to demand the return of the goods if the buyer behaves in breach of contract, in particular if he is in arrears with payment or if an obligation is breached.
5) The buyer is entitled to resell the reserved goods in the normal course of business. The buyer assigns the claims against the customer from the resale of the reserved goods to FK Motors Europe GmbH in the amount of the final invoice amount agreed with it (including value added tax). This assignment applies regardless of whether the purchased item has been resold without or after processing. The buyer remains authorized to collect the claim even after the assignment. The authority of FK Motors Europe GmbH to collect the claim itself remains unaffected. However, FK Motors Europe GmbH will not collect the claim as long as the buyer meets his payment obligations from the proceeds received,
6) The treatment and processing or transformation of the purchased item by the buyer is always carried out in the name and on behalf of FK Motors Europe GmbH. In this case, the purchaser's expectant right to the purchased item continues with the transformed item. If the purchased item is processed with other items that do not belong to FK Motors Europe GmbH, FK Motors Europe GmbH acquires co-ownership of the new item in proportion to the objective value of its purchased item to the other processed items at the time of processing. The same applies in the event of mixing with other items that do not belong to FK Motors Europe GmbH.
9 Miscellaneous / Place of Performance / Place of Jurisdiction
1) All contracts and all legal relationships between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Sales Convention (CISG)
2) Place of performance and exclusive place of jurisdiction and for all disputes arising from contracts or legal relationships is the registered office of FK Motors Europe GmbH in Schneverdingen .
10 Data Protection Notice
FK Motors Europe GmbH collects, processes and uses the personal data of its business partners, in particular their contact details for processing their orders, including the e-mail address provided by the buyer. For the credit check, we can use information (e.g. also a so-called score value) from external service providers to help us make decisions and make the payment method dependent on this. The information also includes information about the address of the buyer. With an order, the buyer declares his consent in terms of the General Data Protection Regulation without further explanation. We also refer to our data protection guidelines and further detailed information on our website www.fkmotors.de.
11 Severability Clause
The contracting parties undertake to replace an ineffective or becoming ineffective or unenforceable clause with one that comes as close as possible to the economic purpose of the ineffective or ineffective or unenforceable provision.