| Weser-Ems Vertriebsgesellschaft mbH,
General Terms and Conditions
Last updated on 29.01.2009 |
| I. | General |
| 1. | The sale of new and used parts shall transpire exclusively on the basis of these Terms and Conditions. They shall thus apply likewise to all future business dealings, even if no expressly renewed agreement on them is concluded. |
| 2. | These Terms and Conditions shall be considered to have been accepted by no later than at the time of acceptance of the goods or service. |
| 3. | All agreements must be formulated in writing; subsidiary verbal agreements, pledges or amendments of contract shall not be valid. |
| 4. | These Terms and Conditions expressly deny the application of any contrary purchasing terms formulated by the Buyer. Recognition of any such terms shall be denied even if the Seller does not explicitly object to them anew subsequent to receiving them. |
| II. | Prices and Payment Terms |
| 1. | The price of the object of purchase is understood to be ex works (meaning the business premises of the Seller supplying the object of purchase). The purchase price comprises the list price for the object of purchase at the time of contract closure plus the legally valid sales tax amount. Packaging, shipment and any other agreed collateral performance, most notably transportation insurance, shall be separately calculated. |
| 2. | Unless otherwise agreed, advance payment shall be due for the object of purchase. Payment orders, cheques or bills of exchange shall only be accepted under the provision that all cashing expenses and discount charges are invoiced. |
| 3. | The Buyer shall only be entitled to offset any claims of its own against those of the Seller's if the Buyer's counterclaim is undisputed or based on a non-appealable title. The Buyer shall only be entitled to assert a right of retention if such is based on valid claims arising out of the purchase contract. |
| III. | Conclusion of Contract and Delivery |
| 1. | All offers are non-binding and subject to alteration. This applies likewise to information and data contained in sales media (used by the Seller). |
| 2. | Orders received from the Buyer shall be binding. We shall only accept orders placed by telephone at the Buyer's own risk. Written confirmation of an order by the Seller shall constitute the conclusion of a binding contract. If no written confirmation is issued, a binding contract shall be considered to have been concluded no later than at the time of delivery of the goods. |
| 3. | The delivery of goods by the Seller can only transpire on the basis of a binding order, provided the goods are available from the Seller. Delivery dates shall only be considered to be binding if written confirmation thereof is issued by the Seller. |
| 4. | In the event that the Buyer should be entitled to compensation for damage caused by delay, such compensation shall be limited, in cases of slight negligence on the part of the Seller, to a maximum of 5 per cent of the agreed purchase price. Should the Buyer additionally wish to withdraw from contract and/or demand compensation for damages in lieu of performance, the Buyer shall be obliged to first set a reasonable deadline for delivery by the Seller. Should the Buyer be entitled to compensation for damages in lieu of performance, such entitlement shall be limited, in the case of slight negligence, to a maximum of 25 per cent of the agreed purchase price. If the Buyer is a legal entity under public law, a special fund under public law or a business exercising its commercial function at the time of contract closure, these Terms and Conditions shall preclude entitlements to damage compensation in the case of slight negligence. If, during a period of default, it should become impossible for the Seller to render delivery, the Seller shall be liable in accordance with the below-mentioned liability limitations. The Seller shall not be liable if the damage would have occurred even in the event of timely delivery. |
| 5. | The goods shall be shipped ex works (meaning the Seller's business premises) at the cost and risk of the Buyer. This shall apply likewise even if the goods are delivered by a third party at the Seller's instigation. Should the goods be shipped in reusable packaging, the Buyer shall be under obligation to return that reusable packaging, carriage paid, upon receipt of the goods. Should the Buyer fail to comply with this obligation within a reasonable period of time, the Seller shall be entitled to invoice the Buyer for the reusable packaging. |
| 6. | Incidents of force majeure shall give the Seller the right to postpone delivery for the duration of the obstruction plus a reasonable period for the recommencement of operations. All circumstances shall be considered to be the equivalent of a force majeure which circumstances make it substantially more difficult or even impossible for the Seller to render delivery, e.g. government currency or trading policy or other jurisdictional measures, natural disasters, strikes, lock-outs, disruptions to operations such as fire, or the obstruction of transportation routes. Should the execution of contract become infeasible for either Party, it may withdraw from contract insofar as the situation justifies it. |
| 7. | The right shall be reserved during the delivery period to make changes to the scope of delivery or changes to design or form, insofar as the object of purchase is utilisable for the designated purpose. |
| IV. | Cancellation Policy / Instruction on the Buyer's Right of Revocation |
| 1. |
The Buyer may revoke its contract declaration within one month - without the requirement to state its reasons - by forwarding a written statement explaining such (e.g. in the form of a letter, fax or email) or, if the item is transferred to it prior to the expiration of the time limit for revocation, by returning the item. That period shall commence upon receipt of this written instruction on the cancellation policy, but no sooner than upon receipt of the goods by the recipient and not before our obligations to provide information in accordance with Section 312c Par 2 of the German Civil Code in conjunction with Section 1 Par 1, 2 and 4 of the German Civil Code's Regulation on Information Provision and our obligations in accordance with Section 312e Par 1 Sent 1 of the German Civil Code in conjunction with Section 3 of the German Civil Code's Regulation on Information Provision have been satisfied. Punctual dispatch of the statement of cancellation or of the goods for return shall suffice for compliance with the time limit for revocation.
Any statement of cancellation must be addressed to
Weser-Ems Vertriebsgesellschaft mbH
Volkswagen Audi Classic Parts Center
Theodor-Heuss-Straße 28 b
38444 Wolfsburg
GERMANY
Fax +49 (0) 5361 - 30 85 77 77
The right of revocation does not apply to Buyers who are businesses in accordance with Section 14 Par 1 of the German Civil Code and who thus exercise their commercial function or their function as a self-employed professional at the time of contract closure.
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| 2. |
Instruction on the Consequences of Revocation
In the case of a valid revocation of contract, both Buyer and Seller must return the deliveries and services received and release any benefits derived from them. If the Buyer is unable to return the goods received from Weser-Ems Vertriebsgesellschaft, in whole or part, or is only able to return them in a deteriorated condition, the Buyer will be liable to pay Weser-Ems Vertriebsgesellschaft appropriate compensation. This shall not apply if the deterioration of the goods in question is entirely due to its inspection as it would have been possible for the Buyer to execute in a shop. Moreover, the Buyer can avoid such liability for compensation by refraining from using the goods as if it owned them and also refraining from any action that diminishes their value. If the Buyer exercises its right of revocation in a timely manner, Weser-Ems Vertriebsgesellschaft mbH shall refund the purchasing price already paid within 30 days subsequent to receipt of the returned goods. The Buyer shall be under obligation to arrange return shipment of the goods as a parcel shipment. Goods not suitable for parcel shipment shall be picked up by Weser-Ems Vertriebsgesellschaft from the premises of the Buyer. The Buyer must address the return shipment to
Weser-Ems Vertriebsgesellschaft mbH
Volkswagen Audi Classic Parts Center
Theodor-Heuss-Straße 28 b
38444 Wolfsburg
GERMANY
Fax +49 (0) 5361 - 30 85 77 77
In the event that a return shipment originates from a delivery of goods the order value of which totals EUR 40 or less, the Buyer shall assume the costs of return shipment if the delivered goods correspond with the ordered goods. In all other cases, return shipment shall be free of charge for the Buyer. In the event of partial revocation, Weser-Ems Vertriebsgesellschaft may request the Buyer to retroactively pay for shipment costs (for original shipment by Weser-Ems Vertriebsgesellschaft to the Buyer) if the residual order value subsequent to revocation (i.e. the original order value minus the order value of the revoked part of the order) is less than the respective limit for shipment costs and no shipments costs were originally invoiced (at the time of order). |
| V. | Goods Acceptance |
| 1. | The Buyer shall be under obligation to accept the object of purchase within a period of eight days following receipt of the availability notice. In the event of non-acceptance, the Seller may exert its legal rights. |
| VI. | Retention of Title |
| 1. | The object of purchase shall remain the property of the Seller until such time as all amounts payable to it have been settled in full. |
| 2. | If the Buyer is a legal entity under public law, a special fund under public law or a business exercising its commercial function or its function as a self-employed professional at the time of contract closure, the retention of title shall also remain in effect with respect to the Seller's claims vis-à-vis the Buyer, which claims have arisen out of the ongoing business relationship, until such time as the claims relating to the purchase have been settled. |
| 3. | The Seller herewith states that any treatment or processing shall transpire under exclusion of the acquisition-of-ownership provision set out in Section 950 of the German Civil Code and that such treatment or processing shall not subject the Seller to any obligation. Should the object of purchase be mixed or combined with other items (Sections 947 and 948 of the German Civil Code), the Seller shall be understood to have proportionate co-ownership of the compound or integrative item in accordance with the ratio of a) the invoice value of the goods subject to retention of title contained in that compound item to b) the sum of the invoice amount. |
| 4. | It shall not be permissible to pledge or transfer by way of security any objects belonging to the Seller which have been delivered under the provision of retention of title. Should a third party access such objects, the Buyer shall be obliged to notify the Seller thereof immediately and in writing and to likewise immediately inform that third party about the Seller's retention of title. |
| VII. | Material Defects |
| 1. | Claims by the Buyer regarding material defects shall come under the statute of limitations as set out in the pertinent legal regulations. In the case of new vehicle parts this limitation is two years, in the case of used parts it is one year from the time of delivery of the object of purchase. Should defects be fraudulently concealed or should warranty be granted for quality, all further claims shall remain unaffected. |
| 2. | The following shall apply with respect to processing the correction of defaults:
a) The Buyer must assert any claims for the remedying of defects vis-à-vis the Seller. If claims are reported verbally, the Buyer must be issued written confirmation of receipt of such notification.
b) Replaced parts will become the property of the Seller.
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| VIII. | Liability |
| 1. | Should legal provisions stipulated by these Terms and Conditions oblige the Seller to accept responsibility for damage as a result of slight negligence, the Seller shall have limited liability:
Liability shall exist only in the event that essential contract obligations are violated and shall be limited to the kind of damage typically foreseeable at the time of contract closure. This limitation does not apply in the event of damage to life, of personal injury or of injury to health. Should the damage be covered by insurance taken out by the Buyer to protect it against just such a case of damage (excepting the insurance of fixed sums), the Seller shall be liable only for any detriment caused to the Buyer, e.g. a raising of its insurance premium or interest charges levied on it, until such time as the insurance company has finalised claim settlement. No liability shall be assumed for incidents of damage caused by defects in the object of purchase, which incidents constitute slight negligence.
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| 2. | Any liability on the part of the Seller arising out of the fraudulent concealment of a defect, the acceptance of a guarantee or a procurement risk or in accordance with the law on product liability shall remain unaffected by whether or not blame is actually attributable to the Seller. |
| 3. | These Terms and Conditions preclude any personal liability by legal representatives, vicarious agents or members of staff of the Seller for damage they cause as a result of slight negligence. The liability limitation which applies to the Seller in the event of damage as a result of gross negligence shall apply accordingly to the said individuals, excepting the legal representatives of the Seller and its executive employees. |
| 4. | The rights of the Buyer with respect to material defects in accordance with Section VI, above, shall remain unaffected. Liability on the grounds of delayed delivery is conclusively regulated in Section III, above. |
| 5. | The Buyer must report any damage or loss for which the Seller is obliged to provide compensation to the Seller immediately and in writing or must have the Seller record such damage or loss. |
| IX. | Place of Performance, Jurisdiction and Applicable Law |
| 1. | The place of performance shall be the Seller's business premises from which delivery of the object of purchase transpires. |
| 2. | The exclusive place of jurisdiction regarding all current and future claims arising out of the business relationship, including claims for bills of exchange or cheques, shall be the place of residence of the Seller's headquarters. |
| 3. | German law shall apply exclusively. Foreign law and the UN Convention on Contracts for the International Sale of Goods, dated 11 April 1980, shall not be applicable. |
| 4. | Should provisions of these Terms and Conditions and the contract on which they are based be legally invalid or non-executable, in whole or part, the validity of the remaining provisions of the contract and of these General Terms and Conditions shall remain unaffected. The Contract Partners shall be under obligation to replace the invalid provision with one coming as close as possible to the economic goal of the invalid provision. |
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