General Terms and Conditions

General Terms and Conditions of TROST Vehicle Parts
(last updated June 2016)

 

1. Scope/Defensive provisions

1.1 These terms and conditions apply exclusively to persons who, at the time the contract was made, were acting in a commercial or self-employed professional capacity (entrepreneur) and to legal persons under public law and government owned funds under public law.

1.2 These terms and conditions apply exclusively to all our supplies and services - including future supplies and services. Alternative or additional terms and conditions of the purchaser shall not be binding on us, including in specific cases in which we do not explicitly reject such terms and conditions, unless we recognise the same in writing. In this case such terms and conditions shall only apply to the specific individual contract. Any specific agreements reached between us and the purchaser remain unaffected.

 

2. Conclusion of the contract

2.1 Unless otherwise designated as binding our offers are explicitly non-binding.

2.2 The purchaser is bound by its order for two weeks after it has been received by us.

2.3 Orders, additions or amendments to an order shall be deemed to have been accepted if confirmed by us in writing; shipment, receipt of a delivery note or receipt by the purchase counts as confirmation.

2.4 Conclusion of contract is contingent on correct delivery to us from our suppliers. This does not apply if we are at fault for non-delivery or improper delivery, as well as in particular if we have not concluded a congruent hedging transaction. We shall notify the purchaser immediately if goods are unavailable and shall reimburse consideration paid immediately.

2.5 We retain title and copyright to illustrations, drawings, calculations, cost estimates and other documents. Such documents may only be made accessible to third parties with our prior consent.

 

3. Prices/Payment

3.1 Our prices are quoted ex works plus the applicable value-added tax and plus packaging, transport and other subsidiary costs.

3.2 Our receivables are due for settlement upon delivery of the goods to the purchaser and are payable at no discount in euros. Prompt payment discount is only granted if agreed separately in writing and only if payment is made within 10 days of the invoice date. We shall be entitled to assert our statutory rights in response to default on payment.

3.3 We reserve the right to accept bills of exchange and cheques, but solely on account of performance and subject to calculation of all costs and fees with no warranty for timely presentation and lodging of protest. The purchaser shall bear the costs incurred as a result of unredeemed or returned direct debits. If the purchaser has issued direct debit authorisation or has issued a SEPA mandate after launch of this system, the period of 14 days prior to due date for pre-notification to be sent to the purchaser shall be reduced by mutual agreement to a period for receipt of the pre-notification of at least one day prior to the due date of the claims to be collected.

3.4 If the purchaser is in arrears with payments by more than two weeks or if the purchaser has discontinued payments or if, after conclusion of this contract, it becomes apparent from other circumstances that our accounts receivable are jeopardised owing to the purchaser's inability to perform, we shall be entitled to demand immediate settlement of our accounts receivable arising from all contracts. We shall be entitled to stipulate a reasonable period for prior payment or to demand collateral for goods which have not yet been shipped; if this period expires unsuccessfully, we shall be entitled to withdraw from the contract and demand compensation.

3.5 The purchaser shall only be entitled to offset counterclaims which are undisputed or recognised by non-appealable declaratory judgement. This prohibition of offsetting shall not apply to a counterclaim based on a defect arising from the same contractual relationship on which our claim is based. The purchaser shall only be entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.

3.6 Shipments to purchasers in the European Union shall be exempt from taxation provided they comply with the provisions of the German VAT Act. If the purchaser fails to honour its duty to provide evidence (entry certificate) of receipt of the goods or transport of the goods to a Member State of the European Union, we shall be required to charge German VAT to the purchaser.

 

4. Delivery

4.1 Unless explicitly stated otherwise in writing, the delivery periods and deadlines quoted by us are non-binding. Delivery periods which are non-binding are merely approximate. Deadlines and periods shall always end on working days; Saturdays do not count as working days. Agreed delivery periods begin when a contract has been made but not before receipt of an agreed down payment; the same shall apply to changes in periods or deadlines. The delivery deadline for orders not entailing assembly shall be deemed to have been met if the delivery item has left our factory before such deadline expires. We shall only be deemed to be in default after a written warning has been given subsequent to the due date.

4.2 We shall be entitled to make part deliveries and to deliver prior to the agreed date to the extent that this is reasonable for the purchaser.

4.3 Technical discrepancies in design or information provided in written and/or electronic and other written documents are allowed, as well as model and design changes stemming from technological advances, to the extent that these are reasonable for the purchaser.

4.4 We shall not be held responsible for incidents of FORCE MAJEURE and other circumstances which it is impossible for us to envisage (including but not limited to procurement, manufacturing and delivery interruptions, strikes, lockouts occurring at our premises or those of our suppliers) and we shall be released from our duty to make delivery for the duration and for a reasonable start-up period - including during a period of default which has already commenced. This shall also apply if we do not receive the third-party approvals we require to make deliveries in good time. The purchaser shall be entitled to withdraw from a fixed date transaction.

4.5 Our duty to make delivery shall be suspended if the purchaser is more than marginally in default with settlement of an account payable. Any costs incurred by us in this context shall be borne by the purchaser. If the purchaser defaults on acceptance or culpably infringes any other duties, we shall be entitled, notwithstanding any further claims, to demand compensation for the damages, including any additional expenses, incurred by us as a result.

4.6 If we fail to perform in good time, the purchaser is only entitled in law to withdrawif we are responsible for the delay; this does not imply a change in the burden of proof to the detriment of the purchaser.

4.7 Transport and all other packaging under the Packaging Ordinance (Verpackungsverordnung) - with the exception of pallets - shall not be taken back and must be disposed of by the purchaser at the latter's cost.

4.8 If our scope of delivery includes software, the relevant license terms shall also apply.

4.9 Night deliveries are made to a particular location specified by the purchaser which is sufficiently large, secure against theft and inaccessible to unauthorised third parties. The increased risk of loss which arises if the purchaser stipulates a different location for night deliveries shall be borne by the purchaser. Our liability and that of agents in performance for loss, damage and other consequential or financial damages is excluded.

 

5. Claims for defects (under section 36 of the German Consumer Dispute Resolution Act, Verbraucherstreitbeilegungsgesetz)

5.1 The goods shall be deemed to be free of defects if they comply with the agreed standard of quality as stated in the written confirmation of order and our product description. Public statements, recommendations and advertising by us, a manufacturer or agent shall have no significance with regard to quality.

5.2 The purchaser must meet its commercial law duties to inspect and notify defects (section 377 of the German Commercial Code, HGB). Any defects which are discovered shall be notified in writing with details of the specific complaint within 3 working days. The purchaser must take receipt of deliveries, including where they are only affected by minor defects.

5.3 Claims for defects are excluded with regard to deliveries of used goods.

5.4 The purchaser shall provide us with the opportunity to examine any defects which are notified, including via a third party. If a notification of defect proves to be unfounded, the purchaser shall, unless the purchaser is not responsible for the unfounded notification, reimburse our costs of inspection.

5.5 In the event of a defect, we may choose to either rectify it or supply the item again (remedy). If an attempt to remedy fails or is unreasonable to expect, or if we refuse any remedy, the purchaser is entitled to reduce the payment or - in the case of a significant defect - cancel the contract or claim damages in accordance with section 6 "Liability". Only in urgent cases in which operational safety may be jeopardised or in order to ward off disproportionately greater damages shall the purchaser be entitled, after immediately notifying us to this effect, to rectify the defect itself or to arrange for such defect to be rectified by third parties and to demand reimbursement of the necessary expenditure from us.

5.6 We are not responsible for expenses connected with remedies if such expenses arise from the fact that goods were taken to a location other than the location agreed as the place of performance, unless this corresponds to their usage per the contract. Replaced parts shall be our property and must be returned to us.

5.7 The purchase shall not be entitled to assign claims for defects.

5.8 If deliveries are made at night, the purchaser shall inspect the relevant goods delivered immediately. Transport damage, incorrect quantities, incorrect deliveries and losses which become evident upon proper inspection must be reported by 12:00 noon of the day of delivery, or in the case of night deliveries by 12:00 noon of the next business day if the day of delivery is a Saturday or holiday. The above provisions apply to any other defects.

5.9 We are neither required nor willing to participate in any dispute resolution proceedings before an arbitration board.

 

6. Liability

6.1 Our liability for slight negligence is limited to violation of non-material contractual duties. In the case of a slightly negligent breach of a material contractual duty - including by legal representatives and agents in performance - our liability is limited to foreseeable damages typical of the type of contract concerned. We shall, however, hold unlimited liability for physical injuries and bodily harm to the purchaser culpably caused by us, our legal representatives or agents in performance as well as for wilful intent, gross negligence and absence of guaranteed features.

6.2 The above provisions shall also apply in favour of our employees, legal representatives and agents in performance.

6.3 Our liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.

6.4 Our liability for slight negligence is limited:
6.4.1 in the case of property and financial damages which are covered by insurance taken out by the purchaser to the disadvantages associated for the purchaser with a claim made on such insurance;
6.4.2 for each case of property damage up to an amount of €200,000.00 and for financial damages up to an amount of €50,000.00.

6.5 If we withdraw from the contract due to a culpable breach of duty by the purchaser, we shall be entitled to demand flat-rate damages amounting to 10% of the order value without providing further documentation. We shall be entitled to provide evidence of a higher level of damage and the purchaser shall be entitled to provide evidence that no damage at all or significantly less damage has been caused.

 

7. Limitation period for claims for defects and compensation

7.1 The limitation period for claims held by the purchaser arising from defects to newly manufactured goods is one year. This does not apply if longer periods mandatorily apply pursuant to section 438 (1) no. 2 (constructed works, items for constructed works), section 479 (1) (rights of recourse) or section 634a (1) no. 2 (structural defects) of German Civil Code (BGB). This likewise does not apply to damage claims as compensation for physical injury or bodily harm, or to wilful intent or gross negligence by us or our agents in performance.

7.2 The limitation period for claims for damages by the purchaser which are not based on a defect in the goods is one year. This is without prejudice to the statutory limitation provisions applicable to claims based on wilful intent, gross negligence, breach of guarantee, physical injury or bodily harm or the German Product Liability Act.

7.3 The limitation period shall begin to run in accordance with the law.

 

8. Passage of risk

8.1 Unless otherwise agreed, our deliveries are made EX WORKS - EXW (INCOTERMS 2010).

8.2 If shipment of the goods has been agreed with the purchaser, the risk of accidental loss or deterioration of the goods shall pass to the purchaser upon transfer of the goods to the first carrier. We shall only take out transport insurance on request and in the name and on the account of the purchaser.

8.3 For orders including assembly, the purchaser must make the necessary preparations promptly (e.g. providing space, power, other connections, etc.) to allow assembly to be carried out in accordance with the contract terms. The risk of accidental loss and deterioration shall pass to the purchaser at the latest when title passes to the purchaser.

8.4 If shipment is delayed as a result of circumstances for which the purchaser is responsible, the risk shall pass to the purchaser on the day on which the delivery is ready for shipment. In this case we shall be entitled to store the goods at the purchaser's cost and risk at our own discretion and to demand payment of the agreed price. We shall be entitled to make a charge for the costs equal to a flat rate of 0.5% of the invoice amount per part month; we shall be entitled to provide evidence of higher costs and the purchaser shall be entitled to provide evidence of lower costs.

 

9. Reservation of title

9.1 We retain title to the goods ("retained goods") until complete payment of all accounts payable, including all future accounts payable, arising from the entire business relationship including all side claims and until the redemption of any and all bills of exchange or checks. For running accounts, this retention of title shall be deemed security for the open balance.

9.2 If the purchaser breaches the contract, including but not limited to defaulting on payment, we shall be entitled to demand surrender of the retained goods to which we hold title; we shall be entitled to re-possess such goods. For this purpose the purchaser shall irrevocably grant us the right to enter its business premises. Repossession of the retained goods by us shall not be construed as withdrawal from the contract. We shall be entitled to realise the retained goods upon repossession. The sales proceeds shall be deducted from the amounts owed by the purchaser thereby making appropriate deduction for realisation costs.

9.3 The purchaser shall treat the retained goods with due care and shall, in particular, obtain adequate value-as-new insurance cover against fire, water, and theft at its own cost. Any maintenance and inspection work which is required shall be performed in good time by the purchaser at its own cost.

9.4 Processing and working by the purchaser shall in all cases be undertaken for and on our behalf without imposing any commitments upon us. If our retained goods are processed, blended or irrevocably mixed with other items not owned by us, we shall acquire proportionate co-ownership to the new item based on the ratio of the invoice value of the retained goods at the time of such processing, joining or blending. The co-owned goods created as a result shall be deemed retained goods within the meaning of section 9.1. In the event that we lose title to our property through attaching or blending, the purchaser hereby assigns to us the purchaser's property rights to the new goods in the amount of the invoice value of our goods and shall store such property for us at no charge; co-ownership property thus arising constitutes retained goods as per section 9.1. For the purposes of securing our accounts receivable from the purchaser the purchaser shall assign to us those of its accounts receivable from a third party obtained by the purchaser by virtue of joining the retained goods with real estate.

9.5 The purchaser shall be entitled to re-sell goods to which we hold title or co-title within the framework of the purchaser's ordinary business activities. The purchaser herewith assigns to us all accounts receivable from its own customers from the resale of the goods; to the extent that we merely co-own the goods sold, the purchaser assigns such accounts receivable in relation to its own proportionate co-title; we herewith accept such assignment. The purchaser shall be entitled to collect accounts receivable which have been assigned to us. Our power to collect the receivables ourselves shall remain unaffected. We do, however, undertake not to collect the receivables ourselves as long as the purchaser continues to meet its payment obligations from the proceeds, does not default on payment and, in particular, no application is made for institution of insolvency proceedings or suspension of payments. If this is the case, however, the purchaser shall, on request, send a schedule of the accounts receivable assigned to us stating the address of the relevant customer and the amount of the accounts receivable. In all other respects the purchaser shall, at our request, notify the customer of the assignment of the accounts receivable and surrender to us the information or documents which we require in order to enforce our rights.

9.6 Dispositions not undertaken in the ordinary course of business, such as pledging and transfers of ownership as security, are not permissible. The purchaser must notify us immediately in writing of any third-party encumbrance of our retained goods or accounts receivable assigned to us, including particularly attachment. If the third party is not able to reimburse to us the court or out-of-court costs of an action brought under section 771 of the Code of Civil Procedure (ZPO), the purchaser shall be liable for any losses we may incur. We undertake to release the collateral security due to us at the request of the purchaser to the extent that the realisable value of our collateral exceeds the value of the secured receivables by more than 10%; we shall be entitled to decide which collateral to release at our own discretion. Release takes the form of transfer of ownership or reassignment.

 

10. Legal venue/Applicable law/Final provisions

10.1 German law applies; the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

10.2 The exclusive legal venue is the court having jurisdiction for our registered office; we are, however, entitled to bring an action at a court having jurisdiction for the purchasers registered office. If any of these provisions are or become invalid, this shall not affect the validity of the remaining provisions.

 

General Terms and Conditions applicable for:

WM SE as a legal successor of TROST AUTO SERVICE TECHNIK SE, Stuttgart and its related companies TROST Logistik GmbH & Co. KG, Winsen

Contact

TROST Vehicle Parts
is a Trademark of WM SE

WM SE
Kesselstr. 23
70327 Stuttgart
Germany

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