RECARO Automotive GmbH – General Terms and Conditions (May 2019)
1. Scope of application
a) These General Terms and Conditions for the Aftermarket Business (hereinafter referred to as “Terms”) apply for all contracts about deliveries and services of RECARO Automotive GmbH, Stuttgarter Str. 73, 73230 Kirchheim/Teck, Federal Republic of Germany (hereinafter referred to collectively as “RECARO”, “us” or “we”) with its aftermarket business customers (hereinafter referred to as “Buyer(s)”). The Terms apply exclusively to companies within the meaning of Section 14 BGB [Bürgerliches Gesetzbuch - German Civil Code], i.e. natural persons or legal entities, which, in respect of the purchase of goods, are acting in the performance of their commercial or independent professional activities.
b) The Terms apply exclusively to all contracts concluded between us and the Buyer concerning the delivery of goods. Differing terms and conditions of purchase or other differing terms and conditions of the Buyer shall not apply unless we have expressly acknowledged them in writing. Our silence regarding such differing terms and conditions shall not be deemed to be consent, and this shall also apply to future contracts. Verbal agreements shall only be binding for us if and as far as we have confirmed them in writing. This shall also apply to any waiver of this requirement of written form itself. This shall not affect the precedence of an individual agreement pursuant to Section 305b BGB.
c) Any amendment of these Terms becomes amends any current contract between us and the Buyer if the Buyer agrees to this amendment. Our Terms are taken as a basis for any business later concluded between us and the Buyer, even if in the isolated case it has not been referred to our Terms.
2. Offer and Supply Contract
a) Our offers are subject to change. The types and quantities of the goods which we have specified as being in stock are expressly subject to prior sale. The Buyer shall be bound by his order for the period of 14 days following receipt thereof by us. Legal agreements shall be established in accordance with our written order confirmation. In order to be valid, oral collateral agreements, undertakings, contractual supplements or contractual amendments shall be subject to our written confirmation.
b) Any documents, drawings, details of weight, samples etc. enclosed with our quotation or order confirmation in general only include approximate figures. These constitute neither a guarantee nor do we assume the risk of procurement (“Beschaffungsrisiko”) unless this is expressly indicated in writing. Any reference to standards and similar technical regulations shall also not indicate a specific feature of our products (“Produkteigenschaft”) unless this is expressly indicated. Minor deviations in form, material, color, dimensions, weight and function remain reserved.
c) We shall only be obliged to deliver from our own stock (obligation to deliver from stock), unless otherwise agreed upon in writing.
a) Unless otherwise stated, the agreed prices apply free place of receipt, and for deliveries abroad FCA Incoterms 2010. For domestic orders below € 2.000 net, prices shall be EXW Incoterms 2010.
b) The prices include packaging; special packaging shall however be charged at cost price. Packaging will not be taken back. In the absence of a special agreement, any insurance costs shall be borne by the Buyer.
c) Insofar as not otherwise agreed upon in writing, the prices do not include value added tax.
4. Terms of payment
a) Unless otherwise agreed, invoices are due for payment within 14 days upon their receipt. Delivery to Buyers unknown to us are exclusively made against advance payment.
b) Should Buyer fall into arrears with payments, we are entitled, to charge interest to the amount of 9 % above the respective base interest rate of the European Central Bank. This shall not constitute a waiver of further damage claims
c) The Buyer shall have no right of retention unless it is based on the same contractual relationship. Set-off against disputed claims or claims which have not been recognized by declaratory judgment shall be excluded. We shall have the right to avert the exercise of a right of retention by provision of security, also by guarantee.
5. Delivery deadline
a) Specified delivery times are not binding unless otherwise agreed in writing. If delivery dates and periods are not binding or approximate (ca., about etc.), we shall use our all reasonable efforts to comply with them. if not agreed differently, the delivery period starts with sending our order confirmation, however, as an exception to this principle, at the earliest after clarification of all details of execution of the contract with the Buyer.
b) Our delivery obligation will be suspended for as long as Buyer is in arrears with the performance of an obligation arising out of this or another agreement.
c) If we do not receive deliveries or services from our sub-contractors, for reasons for which we are not responsible, to enable us to provide deliveries or services which are due from us under the contract, despite due and sufficient stocking in terms of quantity and quality under our delivery or service agreement with Buyer, for reasons for which we are not responsible, or events of force majeure occur, we shall notify the Buyer in writing or text form in due time. In such case, we shall have the right to postpone the delivery for the duration of the obstruction, or to rescind the contract in whole or in part for that part not yet fulfilled. Events of force majeure are among others but not exclusively, fire, flood, earthquake, and other extreme natural events, acts of God, riots, strikes, lock-outs, official intervention, energy shortages and shortages of raw materials, transport bottlenecks through no fault of our own, company obstructions through no fault of our own, e.g. due to fire and water damage, and damage to machinery, and any other obstructions which, when considered objectively, were not caused by our negligence.
d) Should we fall behind delivery commitment, then Buyer may impose a reasonable grace period of at least two weeks and may then withdraw from the Agreement if we fail to make the delivery within this grace period. Should this delay be limited to a partial performance, then Buyer may only withdraw from the entire Agreement if he has no interest in the partial performance. Further claims brought on the grounds of delay, default or non-performance, in particular claims for damages, shall only be exist in accordance with clause 10.
6. Transfer of risk and dispatch
a) If nothing has been agreed to the contrary between the Buyer and us in writing the risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer upon the delivery item being handed over by us to the forwarding agent, carrier or third parties otherwise appointed to handle the shipment. This shall also apply if partial deliveries are made or we have taken over other services (e.g. shipment or installation).
b) If shipment is delayed due to circumstances for which the Buyer is responsible, or the shipment is sent at the Buyer’s request at a date which is later than the agreed delivery date, the risk shall pass to the Buyer from the date on which the notice is sent stating that the delivery is ready for shipment for the period of the delay.
c) Should the Buyer not accept delivery of the goods made available or delivered, we are entitled to store them at the Buyer’s cost and risk in our discretion.
d) If the responsibility for shipment of goods has been agreed with the Buyer to be with us, the choice of the dispatch type sequence and the mode of transportation is left to us; we are obliged to make our choice with the care of an ordinary businessman, but we shall be exclusively liable in case of intent or gross negligence.
7. Right of retention
Up until the complete satisfaction of all our claims vis-à-vis the Buyer, irrespective of their legal basis, we shall have a right of retention to all objects which are to be delivered to the Buyer or which belong to the Buyer and are in our possession.
8. Reservation of title
a) The delivered goods shall remain our property up until the payment of all our claims, irrespective of their legal basis, even if the purchase price has been paid for specially designated deliveries. In the case of a current invoice, the reservation of title shall represent a surety for the balance of our claim. The party ordering is entitled to dispose of the goods within the framework of his routine business activities, or to process these; however, they may not be pledged or assigned for security purposes.
b) Processing or modification of the reserved goods shall not provide the Buyer with the title to the new object in accordance with Section 950 BGB. The processing shall be performed by the Buyer for us. If the reserved goods are processed together with other goods not belonging to us, then we shall acquire joint ownership of the new object in proportion to the purchase price of the reserved goods relative to the other processed objects which do not belong to us.
c) If the goods are mixed with or attached to other objects, then we shall become joint owners in proportion to the purchase price of the reserved goods relative to the other objects. The Buyer shall in advance assign to us the title or the joint ownership of the mixed object or the new object and shall store this with commercial prudence on our behalf. If the delivered goods or the objects which the Buyer has produced from these goods are subsequently resold by the Buyer, then he shall in advance assign to us his claims against his customers up to the level of the purchase price of the reserved goods.
d) At our request the Buyer must provide us with the information about the assigned claims which is necessary enable these to be collected and shall notify the debtors about the assignment. The Buyer must inform us without delay about any pledging of the reserved goods or other third-party attachments.
e) We undertake at the request of the Buyer to release the security interest to the extent that the claims exceed the value of the claims which are being secured by more than 20%.
a) Buyer shall inspect the goods immediately upon receipt if this is expedient in the ordinary course of business and, if a defect is found, shall notify us immediately in writing. Negotiations on any notices of defects shall not constitute our waiver of the objection that the notice was not in due time, unfounded in fact or otherwise insufficient.
b) If Buyer fails to provide this notice, the goods shall be deemed approved unless it is a defect which could not be detected in the course of a normal inspection. Sections 377 et seq. HGB [German Commercial Code] shall furthermore apply.
c) Obvious damages sustained during transport or other defects recognizable already at the time of delivery must also be confirmed by the deliverer’s signature on the respective transport document when delivery is accepted. The Buyer shall ensure that a corresponding confirmation is provided.
d) Supplementary performance shall be provided at our option by remedying the defect or supplying an article free of defects. If supplementary performance fails, the Buyer shall have the right at its option to make a reduction or rescind the contract. This shall not affect the right to assert damages according clause 10 of these Terms.
e) Claims for defects shall become statute-barred two years after the risk passes pursuant to clause 6 of these Terms. This shall not apply in the cases pursuant to clause 10 a) aa) to ff) of these Terms.
f) Warranty claims shall be excluded in case of normal wear and tear, if the goods have been modified without our consent or if our instructions concerning the treatment of the goods have not been adhered to, or if the defects are directly attributable to the fact that the Buyer specified incorrect individual components or raw materials or provided us with defective technical documentation or did not install the goods correctly.
g) We shall only be held responsible according to the before-mentioned regulations. Should the Buyer offer its customers any warranty or guarantee exceeding the aforementioned warranty obligations, there is no liability on our part, unless we are proven to be liable within the aforementioned warranty obligations. This applies as well should the Buyer provide its customers any incorrect details regarding the characteristics of the goods.
10. Liability of RECARO
a) We shall be liable in principle only for own intent and gross negligence and intent and gross negligence of our legal representatives and vicarious agents. Our liability and the liability of our legal representatives and vicarious agents for ordinary negligence for indirect, incidental or consequential damages shall, therefore, be excluded except in the following cases:
aa) the violation of material contractual obligations i.e. such obligations, the fulfilment of which defines the contract and on which the Buyer may rely;
cc) injury to life, limb and health;
dd) the assumption of a guarantee for the quality of a delivery or service or for the existence of an outcome of performance;
ee) fraudulent intent; or
ff) other cases of liability mandatory by law.
b) We shall be liable only for typical and foreseeable damage unless we can be reproached for intentional breach of duty or a case of injury to life, limb and health or other cases of liability mandatory by law exist.
c) Liability for damages other than the liability stipulated in the above paragraphs shall be excluded without regard for the legal nature of the asserted claim. This shall apply, in particular, to damage claims arising from fault when concluding the contract, due to other breach of duty or due to claims in tort for compensation in respect of property damages pursuant to Section 823 BGB.
d) Exclusion or Limitations of liability resp. limitation of liability pursuant to the foregoing paragraphs a). to c) shall apply to the same extent for the benefit of executives and non-executive employees and other vicarious agents of the Seller as well as sub-contractors.
e) Claims by the Buyer for damages from this contractual relationship may only be asserted within a preclusion period of two years as of commencement of the statutory period of limitation. This shall not apply if we are culpable of fraudulent intent, intent or gross negligence and in the case of a claim based on a tortious act.
f) The foregoing provisions shall not constitute a reversal of the burden of proof.
11. Export control / Product approval / Import regulations
a) In the absence of any contractual agreements to the contrary with the Buyer, the delivered goods are intended for placement on the market for the first time within the European Union or, in the case of delivery agreed outside the European Union, within the agreed country of first delivery (first country of delivery).
b) The export of certain goods by the Buyer from there may be subject to authorisation e.g. because of their nature or intended purpose or final destination. The Buyer itself shall be obliged to check this and to comply strictly with the relevant export regulations and embargos for these goods, especially of the European Union (EU), Germany resp. other EU Member States and, if applicable, the USA or Asian or Arab countries and all third countries involved, if the Buyer exports the goods supplied by us or has them exported.
c) The Buyer shall in particular check and ensure, and, on request, provide evidence to us that
aa) the goods provided are not intended for use in armaments, nuclear facilities or weapon technology;
bb) no companies and persons specified on the US Denied Persons List (DPL) are supplied with original US goods, US software and US technology;
cc) no companies and persons specified on the US Warning List, US Entity List or US Specially Designated Nationals List are supplied with original US products without relevant authorisation;
dd) no companies and persons are supplied who are specified on the List of Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the EU Terrorist List or other relevant negative lists for export controls;
ee) no recipients are supplied that violate other export control regulations, especially of the EU or the ASIAN countries;
ff) all early-warning indications of the competent German or national authorities of the respective country of origin of the delivery are complied with.
d) Goods supplied by us may only be accessed and used if the above-mentioned checks and assurances have been carried out respectively been provided by the Buyer; otherwise the Buyer must refrain from carrying out the intended export and we shall not be obliged to perform.
e) Where goods supplied by us are passed on to third parties, the Buyer undertakes to oblige such third parties in the same way as specified in para. a) to d) and to notify them of the need to comply with these legal provisions. Buyer shall be obliged to inform himself of the end-user and verify that also delivery to this end-user is compliant under above a) to d).
f) The Buyer shall at its own expense ensure, where delivery outside the Federal Republic of Germany is agreed, that the goods to be supplied by us comply with all national import regulations of the first country of delivery unless we have expressly assumed this obligation.
g) The Buyer shall indemnify us against all damages and expenses resulting from the negligent breach of the foregoing obligations pursuant to para. a) to f).
12. Product liability
We shall not be held responsible for claims of product liability, should the claim be based on a not approved amendment of the goods or a failure by the Buyer to comply with our instructions for treating the goods. The liability shall be excluded as well should the Buyer have given the customer any incorrect details about the characteristics of the goods unless we are proven to be liable within statutory law product liability and the liability does not result from such incorrect information. In these cases, the Buyer shall release us from all such claims.
13. Intellectual Property
a) All trademarks, copyrights, patents or other industrial property rights regarding our goods shall remain with us unless expressly agreed otherwise. We also reserve all proprietary rights and copyrights to all samples, illustrations, pictures, photos, drawings, data, cost estimates and other documents concerning our products and services that have been made known to or made available to the Buyer.
b) The Buyer undertakes not to use, pass on or make trademarks, copyrights, patents or other industrial property rights as well as the samples, data, photos and/or documents listed in the previous para. a) accessible to third parties unless we give our express consent. He must return these to us immediately upon request. The Buyer shall be liable to us for all damages resulting from his breach of the obligations in para. a) and b).
c) In the event that the Buyer provides us with information, data, (design) drawings and specifications, he assures us that this and the products manufactured based on this information do not infringe any (industrial property) rights of third parties. If, contrary to this assurance, the (industrial property) rights of third parties are infringed by the information, data, (design) drawings and specifications provided by the Buyer or by the products manufactured on this basis, the Buyer shall indemnify us against all claims of third parties, in particular claims for damages, other justified expenses as well as against the costs of legal defense in an appropriate amount against proof. We will inform the Buyer immediately if claims are asserted against us by third parties due to corresponding infringements of (industrial property) rights.
All business, technical or product-related information, especially calculation data, manufacturing instructions, drawings, internal production information and data of whatever kind made accessible to the Buyer by us including other development or manufacturing characteristics to be taken from any objects, documents or data provided (“Confidential Information”) must be kept confidential with respect to third parties and may only be made available to those persons in the Buyer´s own company who must necessarily be involved in their use and who are likewise bound in writing to confidentiality, in the case of employees if permitted by labor law. They shall remain exclusively the property of RECARO. It shall be the responsibility of Buyer to conclude with its sub-contractors similar confidentiality agreements. The above provision shall not apply to Confidential Information which is or has become generally accessible or has been or is communicated to the Buyer by a third party authorized to do so without obligation as regards its confidential treatment or which was verifiably known already to the Buyer prior to the date of receipt. If the Buyer invokes one of the above exceptions to the obligation of confidentiality, the burden of proof that this exception exists shall rest with the Buyer. The obligation as regards confidentiality shall also survive termination of the business relationship with the Buyer.
15. Place of fulfillment and jurisdiction
a) Unless otherwise agreed, the place of fulfillment for all deliveries, services and payments is the business seat of RECARO.
b) The laws of the Federal Republic of Germany shall apply without application of its conflict of laws principles. The United Nations Convention for the International Sale of Goods, (CISG) shall be excluded.
c) Any disputes arising between us and the Buyer and in connection with these Terms shall be settled exclusively before the competent court in Cologne/Federal Republic of Germany. We shall also have the right at our option to bring an action against the Buyer at its place of general jurisdiction.