General Terms and conditions
(State as of November 13th, 2008)
§ 1 Field of application
Our deliveries and services are exclusively subject to the following general terms and conditions valid at the time of the contractual agreement.
§ 2 Exclusive validity
(1) These general terms and conditions are applicable exclusively to legal transactions between ourselves
(Tyreweb GmbH, proprietor Menno Beukers,
Im Hammereisen 27E, D-47559 Kranenburg, Nütterden, Germany) and companies/self-employed persons/accounts (in the following called “buyer” or “customer”), in compliance with Section 14 of the German Civil Code.
(2) We point out that no agreement will be made with persons intending to use our goods for purposes other than attributable to their vocational activities.
(3) Any opposing terms and conditions of the customer are valid only if we have accepted them in writing. So far as the customer does not agree with this, he shall inform us immediately in writing. In such case we reserve the right to withdraw any declarations given to the conclusion of the agreement, and no claims of any kind can be raised against us. We herewith expressly oppose to formulated references made to the terms and conditions of the buyer.
§ 3 Object of agreement
Our offers are subject to alteration without notice. The pictures, drawings, weights, measurements and other details of tyres shown in the product and service descriptions are to be understood as being approximate and do not claim completeness unless expressly stated as being binding. The characteristics of the tyres to be supplied by us as per agreement are exclusively defined by the written contractual documents.
§ 4 Offer / term of commitment / conclusion of agreement
(1) The customer is bound to an order given for a period of four weeks.
(2) Agreement outside the internet: An agreement between the customer and ourselves is concluded if within this period we have confirmed in writing the acceptance of the order on the tyre as per description, if the shipment has been made, or if the customer has accepted an offer we have submitted as per his/her request.
(3) Agreement via the internet: Offers at our internet shop are non-obligatory. By clicking the “order” button, the customer bindingly announces his intention to buy the contents of the basket of commodities in accordance with the general terms and conditions. The contract between the customer and us has gained validity once the order has been accepted by us and the customer has received our confirmation by email or, once the goods ordered have been delivered. The agreement is not yet in force on the grounds of the automatic despatch of the order receipt.
§ 5 Guarantees of the Manufacturer
If the manufacturer grants an individual buyer a guarantee exceeding the legal claims of flaw removal, we shall inform the customer accordingly and pass to him the guarantee documents. We are not liable for the manufacturer’s accomplishment of the guarantee performance, however, we shall pass the tyres involved to the manufacturer for review and further actions to be taken.
§ 6 Customer’s duty of co-operation
(1) The customer shall accept the contractual tyres (purchase item) at the time agreed upon. If the customer delays acceptance, we are entitled to store the tyres on cost and risk of the customer, as well as to opt out of the agreement after a reasonable extension of time and/or to claim indemnification.
(2) Upon registration at our internet shop, the customer shall submit true presentations. If the data of the customer (particularly name, address, email address, phone number) change prior to delivery, the customer shall inform us about any such changes immediately. If the customer fails to give such information or if the customer indicates false data right at the beginning, we are entitled to opt out of the agreement, clear of all charges.
(3) The customer shall ensure that the email account indicated is accessible from the date of contact, and receipt is not excluded due to transmission, shut-down or bouncing of emails.
§ 7 Terms of delivery / change of performance / partial shipment
(1) We engage to inform the customer of the relevant delivery time within the context of order processing or, in an order confirmation if any. Any changes of the purchase item asked by the customer during the term of delivery will delay the time of delivery correspondingly.
(2) Changes or additions asked by the customer after having placed the order will delay the term of delivery in a timely manner.
(3) Partial deliveries and partial performances within the course of the term of delivery are permissible and can’t be refused by the buyer unless they are substantially unacceptable.
§ 8 Place of performance / risk transition
(1) Place of performance of delivery is the seat of our company. Delivery of the contractual tyres is made upon request of the customer. The choice of the route and means of transport is left to us unless something else has been agreed upon.
(2) Dispatch of the contractual tyres is on the risk of the buyer. By handing over the tyres to the supplier/forwarder in time, we have fulfilled our duty of delivery. Any delays of transport to the customer are exclusively to the responsibility of the supplier or the customer and have no influence on the customer’s duty to pay the purchasing price owed.
§ 9 Prices / freight and forwarding expenses / conditions of payment
(1) The prices indicated show the applicable net price, the valid value added tax and the gross amount. For orders via our internet shop, the customer has a choice of making payment as indicated there.
(2) The freight and forwarding expenses invoiced by us can be reviewed online. If ordered via our internet shop, the postage, packing and carriage costs are shown within the frame of the order process. Any freight or carriage costs arising due to an erroneous order or incorrect address of the customer will be invoiced to the customer to the full amount.
(3) If the customer comes in default of payments, we are entitled to claim interest on arrears of 8 percent points above the valid basic bank rate. The customer is free to prove that we suffered a lower damage or none at all. Notwithstanding, we are entitled to demand further claims for damages, and in particular additional costs and reminder fees of € 5.00 per note. In case of charges arising from incorrect account data or unauthorized refusal, bank costs incurred may be invoiced to the customer.
§ 10 Offset and retention rights
(1) The customer has no offset right unless his counter-claims are uncontested or legally assessed.
(2) The customer can claim a performance refusal or retention right only if our payment claim and the counter-claim of the customer base on the same contractual relationship.
§ 11 Reservation of title
(1) We reserve the right of property of the contractual tyres up to the complete payment of all debts of a current business affair.
(2) The customer shall handle the tyres received with care and inform us without delay of a seizure of a third party, e.g. in case of an attachment, as well as of damage or destruction of the goods. The same is applicable to changes of ownership or own residence.
(3) In the case of any actions of the customer against the agreement, especially with regard to delays of payment or violation of a duty as per section 2, we are entitled to opt out of the contract after the lapse of a reasonable deadline, to claim the contractual tyres back and to satisfy open titles by free or public auction sale while safeguarding the interests of the customer. However, fixing a deadline is negligible if the customer seriously or finally refuses performance or if it is obvious that he will be unable to perform within the term fixed.
(4) The customer is entitled to sell the contractual tyres in a common action of business. He/she assigns to us already now all claims amounting to the sum of the invoice charged to a third party. We herewith accept the assignment.
§ 12 Warranties for defects
(1) A product flaw exists if the contractual tyre does not have the properties described by the manufacturer or required by the competent legal body. The contractually acceptable quality is particularly defined in the description given by the manufacturer.
(2) a) The contractor as a customer shall check the contractually supplied tyre right after receipt, exercising due reasonable care and send us a written complaint about any product flaws found. About any hidden flaws initially not found, a written complaint shall be made right after detection. To preserve the deadline, sending the complaint in time is sufficient. This can also be done online.
b) If the contractor does not heed the deadline for complaints, the contractually delivered tyre is assumed to be approved with regard to a product flaw, and hence a claim for flaw removal is excluded. This is not applicable in case where we have acted fraudulently.
(3) In case of a product flaw, the customer is initially limited to claim subsequent accomplishment, subject to the limitations as per section 5. We reserve the choice to perform subsequent improvement or deliver replacement. In this context, a subsequent accomplishment can be subjected to receiving payment of at least 50 percent of the sales price agreed upon or, an adequate portion of it under consideration of the flaw.
(4) If in spite of and after two subsequent accomplishments no removal of the flaw has been achieved or, if we are not willing or able to accomplish or replace within a reasonable period of time or, if the subsequent accomplishment fails for any other reason, the customer is entitled to opt out of the contract or to claim an adequate reduction of the sales price/payment already performed (depreciation) as well as to claim indemnification in place of performance or, replacement of futile expenditures, in accordance with section 13 (liability). In case of a minor contractual contrariety particularly for minor flaws, the customer does not have the right to opt out of the contract.
(5) The right of claiming flaw removal is excluded in the following cases:
a) If the tyres supplied by us were repaired or manipulated by someone else;
b) If there is a natural wear and tear of the tyres, damage caused by incorrect handling or by accident;
c) If after mounting, the tyres were damaged due to a wrong wheel base or, if the performance of the tyres was strongly impaired by other disturbances of the wheel run (e.g. dynamic unbalance);
d) If the tyres were mounted onto non-qualified, non-true to gauge, rusty or otherwise inadequate rims;
e) If the tyres have become defective by external force or mechanical damage and/or if they were exposed to excess heat.
The above exclusions are not applicable if the customer proves there is no context between the action performed or the irregular/inappropriate utilization of the tyres and the flaw detected.
(6) If we committed fraud, the legal requirements for handling product flaws remain in force.
(7) If we have given a guarantee for a tyre sold by us, removal of the flaw will be done in accordance with the guarantee conditions provided the guarantee case is justified.
(8) If a flaw/defect that the customer claims does not exist or if there is a reason of exclusion in accordance with section 5, we are entitled to charge the costs for analysis and other processing actions to the customer as per our current price list if the customer wilfully supplied false facts or committed gross negligence when raising and dealing with the complaint.
(9) For indemnification and damage claims of the customer, the terms of section 13 are applicable.
§ 13 Liability
(1) We are liable on the grounds of any legal reason (e.g. breach of duty, unauthorized actions) for indemnification or replacement of futile expenditures, in accordance with the following provisions:
a) without limitation of the amount in the case of intent or gross negligence of one of our legal representatives or executives or, in case of severe organizational faults;
b) limitation of the amount to the predictable typical contractual damage provided the damage was caused intentionally or with gross negligence by our auxiliary employees/workers;
c) for light negligence of our legal representatives and executives and other employees provided a duty is neglected the maintenance of which is of special importance for reaching the target of the contractual purpose (essential duty to accomplish the contract). In this context, the liability for each individual case of damage is limited to the contractual damage predictable at the time of concluding the agreement. Besides, any liability for damages caused by light negligence is excluded. The regulation as per section 3 remains untouched.
(2) For damages due to delay in light cases we are liable up to 5 (five) percent of the contractual compensation.
(3) Liability for negligence of conforming to a justified guarantee, fraud, as per product liability law as well as for damages of life, body or health is handled in line with legal regulations.
(4) The customer shall inform us immediately in writing about any damages in terms of the above liability terms or, get them recorded by us with a view to get us informed as early as possible so we may pursue diminution of the damage together with the customer if possible at all.
§ 14 Limitation
(1) Claims of the customer for product or legal flaws and indemnifications derived from those, within one year after the date of delivery.
(2) For other claims of the customer derived from the contract and/or from an obligation (§ 311 Section 2 of the German Civil Code), the statutory period of limitation is one year after the beginning of the legal statutory period of limitation. The claims end latest at the date of the deadline of the legal maximum statutory period of limitation (§ 199 Section 3 and 4 of the German Civil Right Code).
(3) In case of personal injury as well as intent and gross negligence, the legal statutory period of limitation shall be applicable.
§ 15 Data protection
Data processing is done in accordance with the requirements of the valid Federal Data Protection Law. Any data received from the customer are recorded, processed, used and transmitted to co-operating partners only as far as it is necessary for the establishment and fulfilment of the agreement and the ongoing business relationship with the customer.
§ 16 Written form
Any stipulations dealing with modifications, completions or substantiations of these contractual conditions as well as any special promises and arrangements require the written form and need to be confirmed by the management. Legal authorizations are not involved. Sending messages by email is not considered a written form as per this section of the agreement.
§ 17 Place of performance
Domicile of the contracting parties for our deliveries and performances is
D-47559 Kranenburg, Germany
§ 18 Applicable law
These terms and conditions as well as all contracts applicable are subject to the laws of the Federal Republic of Germany, the UN purchasing law is excluded.
§ 19 Venue
If the customer is commercially active, a merchant or a legal entity of public law, or public legal special assets, any disputes arising hereunder will be settled before the court of law competent for the location of our business domicile. The same is applicable if the customer has no general legal venue in Germany or, if the place of residence or usual sojourn of the customer is unknown at the time of instituting the action.
§ 20 Cession / severability clause
(1) The customer is not permitted to assign any contractual claims basing on these general terms and conditions unless receiving our prior written consent.
(2) If individual terms of these general terms and conditions are or become ineffective as a whole or in part or if there is a gap in these general terms and conditions, this shall not involve the validity of the other terms. We and the customer engage to agree upon the term that comes closest to the meaning and purpose of the ineffective stipulation. In the case of a gap, we and the customer shall add a stipulation corresponding to what would have been agreed upon if the matter had come to mind right from the beginning.