The Terms and Conditions of Sale and Delivery (hereinafter Terms and Conditions) below apply for the handling of all deliveries of Hämmerling – The Tyre Company GmbH – Achsenschmiede 1-4, 33104 Paderborn (hereinafter: Seller) of goods and the services associated with this in respect to entrepreneurs (hereinafter: Buyer) within the meaning of section 310 paragraph 1 of the German Civil Code (BGB).
1. All deliveries and services of the Seller, including those resulting via the Internet presence of the Seller, here in particular via the Internet site http://shop.haemmerling.de with the Buyer as entrepreneur, are based on these Terms and Conditions as well as any separate contractual agreements. Divergent terms of purchase or other general terms and conditions of business of the Buyer, which the Seller does not expressly recognize in writing are not agreed and are not binding for the Seller, even if the Seller does not expressly contradict them. The terms below also apply if the Seller performs the delivery or service in knowledge of contradictory or divergent general terms and conditions of the Buyer.
2. A contract shall be concluded if the Seller confirms the acceptance in writing or has commenced the delivery or service. The range of goods presented within the context of the Internet presence, in particular that presented on the Internet site http://shop.haemmerling.de does not represent an offer in the legal sense. The Buyer shall submit an offer by the order in the online shop, which is accepted by written declaration of the Seller. If this has not occurred in individual cases, the offer shall be accepted at the latest by delivery of the goods to the Buyer.
3. In case of discrepancies between the order of the Buyer and confirmation of the order by the Seller, the Buyer shall be obliged to specifically contradict the order conformation within three working days, otherwise he wishes for the contract to be processed in accordance with the order confirmation. This does not apply to orders by telephone. For these the contract will be processed in accordance with the deviating order confirmation after 24 hours, unless the buyer has specifically contradicted the order confirmation within this time frame.
4. The term “damage compensation” in these Terms and Conditions also includes claims to the compensation of futile expenses.
1. The list price applicable at the time of conclusion of contract shall apply (net list price plus value added tax). Insofar as a time period of more than four months lies between the conclusion of contract and delivery date, the price of the Seller applicable on the date of delivery shall apply. The Buyer shall basically bear the transport costs. Exceptions require the written form.
2. The invoices of the Seller shall become due upon receipt at the Buyer and are to be paid without deduction, unless otherwise indicated on the invoice of the Seller or in a written agreement between the contractual parties. The Buyer shall fall into arrears irrespective of the statutory occurrence of default pursuant to section 286 paragraph 3 of the German Civil Code, if he does not pay the invoice amount 14 days after receipt of the invoice at the latest. The receipt of the invoice is deemed to have occurred after two days have elapsed from the day following the invoice date, unless the Buyer demonstrates a later invoice receipt to the Seller. In the event of default by the Buyer, all outstanding claims shall become due for immediate payment, irrespective of payment due dates. If a discount is granted, the discount rate and discount period shall be indicated on the invoice. The Seller reserves the right to pay out the discount by means of a credit note after payment on time within one month after the due date.
3. The Buyer shall only be entitled to withhold payments or offset these with counterclaims in case of work performances in relation to claims which do not result from defect rectification or production costs, to the extent that his counterclaims are expressly recognized by the Seller as justified and due or are legally determined. Deductions that are not expressly agreed shall not be recognized. If the contractual object is not a work performance of the Seller, the enforcement of rights of retention or counterclaims by the Buyer shall always be subject to the Seller recognizing these as justified and due and these being legally determined.
4. Objections on the part of the buyer against the invoice or the invoice amount (e.g. owing to an absent or incomplete delivery) are to be indicated within a period of 10 days after invoice date in writing under the address of the Seller's head office (receipt of the complaint). After unconditional payment or expiry of the period without written indication, the Buyer shall no longer be entitled to objections against the invoice.
5. The Seller shall reserve the right to demand advance payment, cash on delivery or cash payment for his delivers in individual cases.
6. The Seller shall reserve the right to only deliver within a credit limit that he has defined. The Seller shall also remain entitled to cancel the credit granting – also within the payment periods – if reasons justify the concern that his claims or his security rights are at risk. The Seller shall also be entitled to demand a sufficient security provision at his discretion. If the security provision is not made or not made on time after examination by the Seller, the claim of the Seller shall become due immediately.
1. Delivery dates are not agreed as a rule.
Delivery dates can be agreed as binding or non-binding and only become applicable after written confirmation of the Seller. Agreed delivery dates only apply under the proviso of an undisrupted fabrication process and undisrupted normal transport options.
2. Compliance with the delivery date shall be under the proviso of correct and timely self supply on the part of the Seller. The Seller shall not be responsible for faults on the part of his suppliers.
3. The consequences of force majeure (e.g. fire, explosion, flooding), official measures and other unforeseeable circumstances (e.g. strikes, lockouts) at the Seller and the suppliers of the materials required for the Seller's products shall exonerate the Seller from the obligation to comply with an agreed delivery schedule. The Seller shall immediately inform the Buyer about the beginning and end of such circumstances. In case of force majeure, the Seller shall be entitled to perform the delivery after a reasonable period has passed after cessation of the incidents obstructing the delivery or stop further deliveries without obligation to subsequent delivery.
4. The unloading of delivery vehicles shall be incumbent upon the Buyer; the unloading must occur by the unloading date agreed with him. If such a date is not agreed, the Buyer must immediately unload the vehicle. If a faster delivery is demanded in individual cases, the Buyer shall bear the extra costs resulting from this. Remuneration for self-collection shall not be granted.
5. If the delivery by the Seller to the Buyer is agreed, the transfer of the goods to the Seller shall be the time of passing of risk. In the agreed case product deliveries are a debt to be collected at the debtor's address, the risk shall pass to the Buyer at the time at which the Seller provides the delivery object to the Buyer for acceptance. If a consignment purchase is agreed, the risk shall pass over to the Buyer with the transfer of the goods to the person commissioned with the consignment.
1. If an obligation for acceptance concerns the Buyer and he does not fulfil his acceptance obligations, the Seller shall be free irrespective of other rights to sell the delivery object privately after prior notification of the Buyer. The Seller shall not be bound to the regulations concerning the self-help sale (sections 383, 384 of the German Civil Code).
2. Returning of goods in commercial trade we conclude in principle. The return of delivery objects by way of goodwill presupposes original packaging and carriage-paid delivery after approval of the return and schedule agreement. In case of voluntary returns, the Seller can charge a processing fee of 20 % of the invoice amount. The Seller reserves the right to deductions extending beyond this for value reductions of voluntarily returned goods. The Buyer is entitled to demonstrate that the Seller is not affected by any value reduction or by an essentially lower value reduction than claimed by the Seller as a result of the goods return. Transport costs incurred as part of the goods return are to be borne by the Buyer.
3. The return of complete wheels by way of goodwill is excluded, as this involves goods that are manufactured according to the specifications of the Buyer.
1. The Seller shall retain ownership of all delivery objects until all claims in respect to the Buyer from the business relation, also conditional and those resulting in the future, are fulfilled. The same applies as long as the Seller himself represents a security provider to third parties in conjunction with the business relation.
2. The Buyer may neither pledge nor assign the delivery object for security. If the Buyer is a commercial reseller, he may resell the purchased object in a proper business transaction. However, he shall hereby now assign the purchase price claims against his buyer due from this resale to the amount of the purchase price owed to the Seller. In case of pledges as well as confiscation or other dispositions by third parties, the Buyer shall immediately inform the Seller.
3. In the event of breach of contract by the Buyer, in particular in case of payment default, the Seller shall be entitled to return of the delivery object after admonishment. The Buyer is obliged to surrender of property and information concerning the whereabouts of the purchased objects, upon installation in vehicles in particular with designation of the construction year, chassis number, licence plate number and owner of the vehicle. The declaration of the retention of title as well as the pledging of the delivery object shall only be deemed to be a withdrawal from the contract if the Seller expressly declares this.
4. The Buyer must insure the retained product sufficiently, in particular against fire and theft. Claims against the insurance from a damage case affecting the retained product shall be assigned to the Seller with effect from now to the amount of the replacement value. The Buyer shall inform the insurance about the claim assignment.
The Seller shall be liable for material defects with exclusion of further claims – subject to divergent liability regulations under section VII. of these Terms and Conditions – as follows:
1. Insofar as a defect in the delivery is already present at the time of passing of risk, the Seller can choose between defect rectification and replacement delivery. This does not apply in the case of section 478 paragraph 4 of the German Civil Code (BGB). In this case, the Buyer can demand replacement delivery or defect rectification according to his choice. The Buyer must grant the Seller reasonable time and opportunity for defect rectification, otherwise the Seller is exempted from the liability for consequences resulting from this. Only in urgent cases of hazard to operational safety or to prevent disproportionately large damage, whereupon the Seller must be notified of this immediately, is the Buyer entitled to have the defect rectified himself or by third parties and demand reimbursement of the requisite expenses from the Seller.
2. Consultancy services are free ancillary services, which are not compulsory for the Seller, unless a separate paid additional order is placed.
3. Section 377 of the German Commercial Code (HGB) shall apply for the obligation to inspect and give notice of defects. The Buyer must inspect the supplied product upon delivery for potential defects (in particular in respect to deviations from the ordered amount or the ordered type or soiling) and report this in writing to the Seller within three working days for the safeguarding of his rights. If a defect cannot be ascertained despite proper inspection (so-called concealed defect), it must be reported for claims immediately after discovery, but no later than within three months after delivery of the product. Otherwise the supplied product shall be deemed to be approved.
4. Insofar as tyres are an object of the enforced warranty claim, these must be sent to the Seller for inspection. In the interest of a rapid complaint handling, the claimant must depict the defect comprehensively and completely.
5. Warranty claims are excluded or defects for which the Seller is responsible are not there if
a. Damage is due to improper handling or negligence, due to profile changes performed by oneself or by third parties, notches etc. or due to an accident,
b. an incorrect assembly or commissioning by the Buyer or third parties has occurred,
c. the defect is due to the natural wear of the material of the products,
d. the defect is due to the an incorrect or negligent handling of the products,
e. in case of tyres the necessary tyre pressure currently specified by the manufacturer respectively was not complied with,
f. tyres were subject to an excessive load in violation of specifications, for example by exceeding the load permissible for every individual tyre size and the travel speed assigned to this respectively,
g. tyres have been damaged by an external influence or mechanical violation or have been exposed to excess heat,
h. tyres have been driven on in the wrong wheel setting or were impaired by other faults in the wheel arch (e.g. dynamic imbalance) in their material or in terms of their performance,
i. tyres were mounted on an incorrect, not true to gauge, damaged, defective, rusty or otherwise corroded rim,
j. tyres were stored outdoors,
k. tyres in tube tyre version were mounted with used tubes and bands, in tubeless version without valve replacement or without new sealing ring,
l. only an insignificant defect is involved - such an instance is extant, in particular, in the case of an insignificant reduction in the value or the suitability of the product (e.g. for an purely visual fault which does not have any effect on the functionality of the tyre),
m. tyres were repaired, retread or processed in another way by companies other than the Seller
n. the factory number or the fabrication code is not longer marked on tyres.
6. If the Buyer or a third party on his instruction reworks an improvement without informing the Seller prior to this, the Seller shall not be liable in any way, also neither for consequential damage nor defect consequential damage. The same shall apply for changes to the delivery object made without prior approval by the Seller.
7. Defect claims shall become barred by the statute of limitations in one year after passing of risk. This shall not apply in case of injury to the life, limb or health caused by the Seller, in case of a breach of duty done by the Seller with wilful intent or gross negligence, in case of the adoption of a guarantee or the procurement risk and in case of fraudulent concealment of a defect as well upon application of section 479 paragraph 1 of the German Civil Code (BGB). The statutory period of limitation shall apply in these cases.
8.We point out that the vehicle data, the impression of the wheel offset and pitch circle on the rims must be compared with the ABE or the Technical Inspectorate Board (TÜV) assessment before assembly of the product. If the assessment is not available, please contact us.
9. The statutory defect rights shall apply in addition to this. Damage compensation claims of the Buyer on account of a defect are only regulated under section VII. of these Terms and Conditions.
1. The Seller shall only be liable pursuant to the statutory provisions to the extent that the Buyer enforces damage compensation claims resulting from wilful intent or gross negligence on the part of the Seller.
2. In the case of negligent breach of an essential contractual obligation, the Seller shall be liable in accordance with the statutory provisions. Essential contractual obligations are those whose fulfilment wholly enables the proper performance of the contract and on whose compliance the Buyer regularly relies and may rely. In this case, however, the damage compensation claims are limited to foreseeable, typically occurring damage.
3. Insofar as nothing else results above, damage compensation claims of the Buyer shall be excluded, no matter what the legal reason.
4. Insofar as the liability of the Seller is excluded or limited, this shall also apply in favour of his employees, representatives and vicarious agents in case of their direct claim by the Buyer.
5. The above limitations of liability shall not apply insofar as a liability is mandatory on account of the provisions of the Product Liability Act, if life, limb or health has been harmed or if damage compensation claims owing to the absence of a guaranteed property are enforced against the Seller or a defect was fraudulently concealed. If a guaranteed property is absent, the Seller shall only be liable for such damage whose absence was the object of the guarantee.
6. There shall be no liability on the part of the Seller for quality, finish or the technical implementation of goods delivered by third parties which are used for the manufacture of complete wheels.
All claims of the Buyer – no matter what the legal basis – shall become barred by the statute of limitation insofar as legally permissible 12 months after the statutory limitation commencement. The statutory periods shall apply for deliberate or fraudulent conduct as well as for claims pursuant to the Product Liability Act.
1. The place of performance for deliveries, also carriage paid is – insofar as nothing else expressly results from the order confirmation – the supply plant. The place of performance for the payment is the head office of the Seller in Paderborn.
2. The sole legal venue for all disputes arising from the contractual relations is, if the Buyer is a registered trader, a legal entity under public law or a special asset under public law, Paderborn in North Rhine-Westphalia. However, the Seller is also entitled to file a lawsuit at the head office of the Buyer.
3. The potential ineffectiveness of individual provisions of these Terms and Conditions shall not affect the effectiveness of the remaining regulations. An ineffective provisions is to be replaced by one which comes closest to the intended economic purpose of the ineffective terms and conditions and which is effective. If a provision cannot be replaced by an effective provision, the statutory regulations shall apply.
German law shall apply exclusively. Insofar as EU law is applicable, this shall be incorporated. The applicability of UN Sales Law (United Nations Convention on Contracts for the International Sale of Goods – CISG of 11.04.1980 as amended) is excluded.
Status: January 2014