General Terms and Conditions of Sale and Delivery Mobiparts GMBH
Article 1. Definitions
1. In these general terms and conditions, the capitalised definitions will have the following meanings:
General Terms and Conditions: these general terms and conditions of sale and delivery of the Seller;
Seller: Mobiparts GMBH, a private company with limited liability, listed in the commercial register under number 103/132/60726;
Customer: the Seller's Customer, being any natural or legal person that gives the Seller, in its capacity as retailer and/or business Customer, who commissions the delivery of Goods;
Delivery: to place the Goods at the disposal of, or bring the Goods under the control of the Customer;
Order: the Customer’s Order placed on the website;
Quotation: the written offer made by the Seller to sell a specific quantity of Goods for a specific price;
Goods: the Goods to be delivered to the Customer under the Agreement;
In writing:‘in writing’ is also taken to mean by e-mail, fax, Internet, Skype or other electronic means;
Agreement:the purchase agreement concluded between the Customer and the Seller in respect of the Goods, such as, but not limited to, the Order Confirmation;
Parties: The Customer and the Seller jointly; each individually referred to as the “Party”;
Article 2. Applicability and binding force
1. These General Terms and Conditions apply to all Quotations, Orders, Commissions, Order Confirmations, (purchase) Agreements with the Seller and deliveries by the Seller to the Customer, as well as all legal relationships between the Parties ensuing therefrom.
2. These General Terms and Conditions may be invoked by all natural persons or legal entities affiliated to the Seller that are engaged by the Seller in the performance of the Agreement.
3. The Seller can only be obliged to abide by any deviations from these General Terms and Conditions if these have been agreed in writing.
4. Any reference by the Customer to its own General Terms and Conditions has no effect, unless the Customer expressly and unambiguously rejects these General Terms and Conditions prior to the commencement of the commission. In that case an Agreement has not been concluded until the Parties have reached agreement on the terms and conditions applicable in that case. In all other cases, any General Terms and Conditions of the Customer and other provisions printed on documents of the Customer are hereby expressly declared inapplicable.
5. If the Seller does not always require strict compliance with these General Terms and Conditions, this does not mean that its provisions do not apply or that the Seller waives the right to require strict compliance with the provisions of these terms and conditions in other cases.
Article 3. Quotations, offers and agreements
1. All Quotations and/or offers made by the Seller are without obligation and are valid for 5 days, unless stated otherwise. A Quotation or offer expires if the product to which the Quotation or offer relates has become unavailable in the meantime. Commissions and the acceptance by the Customer of Quotations and/or offers are deemed irrevocable.
2. An Agreement with the Seller is concluded only if the Seller accepts commissions from the Customer in writing or if performance of the agreement has commenced. If the Seller has not yet sent the Customer an order confirmation, the contents of the Agreement will be determined by the commission, the use (between the Parties) and these General Terms and Conditions.
3. The Seller is not bound by any documents, including but not limited to technical specifications, quality standards, designs and/or drawings, supplied by third parties, except insofar as that has been agreed in writing. The Seller cannot be held liable for minor deviations. The Seller cannot be bound by its Quotations or offers if the Customer can reasonably understand that the Quotations or offers, or a part thereof, contain a manifest or clerical error.
4. The return and/or crediting of surplus or incorrectly ordered Goods may take place only with the Seller’s written permission.
5. If the acceptance deviates from the offer included in the Quotation or the offer, whether or not in minor respects, the Seller will not be bound by it. In that case, the Agreement will not be concluded in accordance with this deviating acceptance, unless the Seller states otherwise.
6. A combined quotation does not oblige the Seller to perform part of the commission for a corresponding proportion of the quoted price. Offers or Quotations do not automatically apply to future Orders.
7. The Agreement prevails if there is any conflict between the provisions of the Agreement and these General Terms and Conditions.
8. If changes lead to an increase or decrease in costs, the resulting change in the purchase price must be agreed between the Parties in writing.
9. The Seller is entitled to execute the agreement in parts and to invoice this in a corresponding manner.
10. If the Seller requires information from the Customer for the execution of the Agreement, the execution time will commence once the Customer has provided the Seller with such correct and complete information. Specified delivery times will move accordingly.
Article 4. Delivery
1. The Seller strives to deliver all supplies within the stated delivery times. The stated delivery times are expected dates of delivery and may never be regarded as strict deadlines, unless explicitly agreed otherwise in writing. The Customer must take this into account when concluding agreements with its customers.
2. The Seller will inform the Customer of delays in delivery as soon as possible and will inform the Customer about the new expected date of delivery. The Seller is not liable towards the Customer for loss due to the delay in the delivery, and a delay does not give the Customer the right to terminate the agreement.
3. In the event of non-delivery, the Customer will give the Seller notice of default in writing, stating a reasonable term within which delivery can still be effected. If and insofar as no delivery is made within this term, the Customer is entitled to terminate the agreement, without being entitled to any compensation of damage.
4. The Customer is obliged to take receipt of the Goods purchased when they are made available to it or when they are delivered to it or a third party appointed by it (“delivery”). The risk of loss, damage or depreciation passes to the Customer at the time of delivery. If the Seller has the Goods transported at the instruction of the Customer, such transportation will be for the Customer’s risk.
5. In the event of a refusal to take receipt and/or failure to provide information and/or instructions required for the delivery, or in the event the Goods cannot be transported to the place of destination due to circumstances beyond the control of the Seller, these Goods will be stored for the risk and account of the Customer. The Customer agrees in that case to compensate the Seller for all additional costs, including in any event storage and transportation costs. Storage of Goods as stated here does not alter the obligation of the Customer to take receipt of the Goods.
6. Unless otherwise agreed, delivery will take place from the warehouse in Etten-Leur or from a place yet to be determined by the Seller. If the Customer does not give instructions regarding the manner of dispatch or does not do so in a timely manner, the Seller is free to choose the carrier and means of transport. The Seller is also entitled to deliver and invoice every commission in parts.
7. The Seller reserves the right to deliver COD, whereby the COD costs are for the account of the Customer. The Customer is in default on refusal of the COD delivery.
Article 5. Samples, designs and examples
1. If the Seller has shown or provided any sample, model or example, such is assumed to be shown or provided by way of indication only; the specifications of the Goods to be delivered can deviate from the sample, model or example, unless it was explicitly stated that delivery would be made in accordance with the provided sample, model or example.
Article 6. Prices
1. As regards all legal relationships between the Parties, the prices quoted are based on the Euro. If invoicing takes place in a currency other than the Euro and an exchange rate movement takes place between the time of conclusion of the Agreement and delivery, the Seller is entitled to revise the original purchase price in the applicable foreign currency.
2. All prices are stated exclusive of VAT or any other local taxes or levies.
3. Without prejudice to the provisions of this article, every transaction takes place subject to the explicit condition that the prices are based on the price-determining factors applicable at the time of entering into the transaction. If and insofar as changes arise in the price-determining factors (including, but not limited to increases in and/surcharges on consignment notes, reference prices, import duties, excise duties or other levies, taxes and/or purchase prices) between the time of conclusion of the Agreement and delivery, the Seller is entitled to revise the original asking price.
Article 7. Payment
1. Unless explicitly agreed otherwise, payment of the Seller's invoices must be made within 8 days after the invoice date, in a manner to be indicated by the Seller and in the invoice currency. The Seller is entitled to invoice periodically.
2. Objections to invoices must be communicated in writing to the Seller within two working weeks of the invoice date. Objections to an invoice amount do not suspend the payment obligation. The Customer is not entitled to deduction, suspension or setoff of amounts owed to the Seller. The Seller is entitled to proceed with setoff if the objections prove correct.
3. The term of payment as stated on the invoice should be regarded as a strict deadline. On expiry of 8 days after the invoice date, the Customer will be in default de jure, and all other claims of the Seller against the Customer will also become immediately due and payable in full without further notice of default being necessary.
4. The Customer will owe interest on the due and payable amount of 1% per month or part thereof from the time that it is in default, whereby part of a month will be counted as a full month.
5. The Seller is at all times entitled to demand cash payment and/or advance payment or security for payment of the amount due.
6. Payments by the Customer will always first serve as payment of interest and costs owing and then as payment of the longest outstanding invoices, even if the Customer states that the payment relates to a later invoice.
7. If the Customer remains in default or fails to fulfil one or more of its obligations, all reasonable costs incurred to obtain and out-of-court settlement will be charged to the Customer. In such case, the Customer will owe at least the extrajudicial collection costs of 15% of the outstanding amount, with a minimum of €250.
Article 8. Suspension and termination
1. Each party is entitled to terminate the Agreement by registered letter out of court, or suspend its performance, if the other Party remains in default of its obligations under the Agreement even after a written notice in which a reasonable term for fulfilment is stated.
2. Each Party is entitled, without any demand or notice of default being required, to terminate the Agreement by registered letter if
a) if the other Party requests or is granted provisional suspension of payments;
b) the other Party is declared bankrupt;
c) the company of the other Party is discontinued or liquidated;
d) an attachment is levied on a significant part of the assets of the other Party or another circumstance presents itself as a result of which the Party in question is no longer able to have the free disposal of its assets;
e) if the other Party must for any other reason be deemed unable to fulfil the obligations under the Agreement;
3. Without prejudice to other rights pursuant to the law, the Seller is authorised to suspend the fulfilment of its obligations and/or terminate the Agreement either in full or in part if:
a) the Customer has not fulfilled its payment obligations within the payment term;
b) after the conclusion of the Agreement, the Seller learns of circumstances that give valid ground to fear that the Customer will fail to fulfil its obligations;
c) the Customer undertook to provide certainty for the fulfilment of its obligations arising from the Agreement and this certainty has not, or not sufficiently, been provided;
d) due to delay on the part of the Customer, the Seller can no longer be required to comply with the terms and conditions originally agreed upon;
e) circumstances arise which are of such a nature that the fulfilment of the Agreement or unchanged maintenance of the Agreement cannot reasonably be expected of the Seller.
Suspension of its obligations or termination of the Agreement by the Seller on the grounds mentioned here does not affect its other rights, such as the right to compensation of the damage suffered and expenses incurred. The Seller is not obliged towards the Customer to compensate damage or any expenses in the event of suspension or termination on the basis of this paragraph.
4. With due observance of the provisions of this article and the provisions of article 13 (liability and indemnification), the Parties are entitled to claim compensation of damage resulting from a termination of the Agreement due to an attributable shortcoming on the part of the other Party.
Article 9. Force majeure
1. The Parties are not obliged to comply with any obligation vis-à-vis the other Party if they are consequently hindered as a result of a circumstance for which they cannot be blamed and cannot be attributed to them by virtue of the law, a legal act or according to generally accepted principles.
2. In these General Terms and Conditions, force majeure on the part of the Seller is taken to mean in any event, in addition to what it is taken to mean in the law and case law, the following:
a) the circumstance that goods or services that are important in connection with the performance to be delivered by the Seller are not delivered to the Seller or not delivered in time, or not delivered properly;
b) strikes that prevent the performance of the Seller’s obligations either directly or indirectly;
c) interruptions in the Seller’s business activities, factory occupation, exclusion of workers;
d) fire, power failure, flood, earthquake and transportation difficulties;
e) governmental measures, either nationally or internationally, which prevent the Seller from fulfilling its obligation in time or properly;
3. The Seller is also entitled to invoke force majeure if and insofar as the circumstances that prevent fulfilment under the Agreement arise after the Seller should have fulfilled this obligation.
4. The delivery and other obligations of the Seller are suspended in the event of force majeure. If the period during which the Seller cannot fulfil its obligations due to force majeure is longer than two months, both Parties are entitled to terminate the Agreement, without this giving rise to any obligation to pay compensation.
5. If the Seller has already fulfilled all of its obligations on commencement of the force majeure, or if it can only fulfil part of its obligations as a result of the force majeure, the Seller retains the rights to invoice the delivered part separately and the Customer is obliged to settle this invoice as if it were a separate Agreement.
Article 10. Retention of title and (undisclosed) pledge
1. The ownership of all Goods provided by the Seller in the context of the Agreement will remain vested in the Seller until the Customer has properly complied with all obligations under the Agreement.
2. Goods delivered by the Seller which, pursuant to paragraph 1, are covered by the retention of title, may not be sold on and may never be used as means of payment. The Customer may not pledge the Goods subject to retention of title or encumber them in any other manner. The Seller does permit the Customer to deliver the Goods delivered subject to retention of title to third parties in the context of the normal performance of the Customer’s business operations.
3. The Customer has no right of retention regarding goods delivered by the Seller under retention of title.
4. If the Customer fails to fulfil its payment obligations to the Seller or if the Seller has good grounds to fear that it will do so, the Seller is entitled to repossess the Goods delivered under retention of title without any notice of default or legal intervention being necessary. In such case, the underlying Agreement is terminated without legal intervention, without prejudice to the right of the Seller to claim compensation.
5. The Customer will grant the Seller or a third party designated by the Seller access to the sites where the Goods delivered under retention of title are located.
6. If third parties wish to establish or enforce any right in respect of the Goods delivered subject to retention of title, the Customer is obliged to inform the Seller thereof in writing as soon as can be reasonably expected.
Article 11. Guarantee and non-conformity
1. All statements by the Seller regarding quantities, colours, quality, performances and/or other indications with regard to the Goods delivered and/or yet to be delivered are approximations only, are non-binding and are provided with the greatest possible care. Nonetheless, the Seller cannot guarantee that there will be no differences in this respect. Minor differences will never constitute a failure.
2. The Customer must check the delivered goods, or must have the delivered goods checked, immediately when the goods are placed at the Customer’s disposal. In addition, the Customer must examine whether the quality and/or the quantity of the delivered goods complies with what was agreed upon and complies with the requirements that parties have agreed upon in this regard. The Customer must report visible defects to the Seller in writing immediately after discovering said defects and in any event within five days after delivery.
3. The Customer must report defects other than those that can be discovered at the time of delivery by means of a check, to the Seller in writing within 14 days of (the reasonable possibility of) discovery.
4. Complaints of any defect must contain the most detailed description of the defect possible, allowing Seller to adequately respond to the complaint. The Customer must give the Seller the opportunity to investigate or have a third party investigate a complaint.
5. With due observance of the Customer’s obligation to check the Goods delivered and placed at its disposal for visible defects, and the obligation to report any defects to the Seller in writing within the aforementioned periods, the Seller will, in the event of defective Goods delivered, only be obliged to remedy the failure in one of the following ways, such at the Seller’s discretion:
a) repair of the defect;
b) replacement of the defective Goods on return of the delivered Goods and delivering of new Goods;
c) financial compensation for the defect;
d) repossession of the Goods for repayment of the paid price or, if the Customer had not yet paid for the Goods, crediting of the amount invoiced or to be invoiced. The Seller is only obliged to remedy the failure in one of the ways referred to here. The Seller is not obliged to compensate the Customer for other damage it has suffered.
6. Any claims by the Customer for repairs, replacement, compensation or returns with regard to a defect will lapse after the product speciefied Guarantee will expire.
7. Any claim by the Customer for repairs, replacement, compensation or return of the Goods will lapse if a defect arose or arises as a result of the improper use thereof, incorrect storage or transport or maintenance thereof by the Customer and/or third parties if the Customer or third parties, without the written permission of the Seller, altered the Goods or attempted to alter them, attached other things to the Goods which should not have been attached or if they were processed or treated or installed in manner other than the prescribed manner. The Customer will never be entitled to invoke the guarantee if a defect occurs because of, or as a result of, circumstances on which the Seller has no influence, such as weather conditions (such as, for example but not exclusively, extreme rainfall or temperatures), transport, installation, etc.
8. Insofar as applicable, the Customer can directly invoke the manufacturer warranty vis-à-vis the manufacturer and/or the party equivalent thereto. The Seller will provide the Customer with all reasonable cooperation – best efforts obligation and not a result obligation – when the latter relies on guarantee claims from the manufacturer and/or party equivalent thereto for the delivered Goods.
9.Timely submission of complaints by the Customer will not suspend its payment obligation. The Customer remains obliged to purchase and pay for other Goods ordered in that case as well.
10.If a defect is reported to the Seller outside of the periods stipulated in this article, the Customer is no longer entitled to repairs, replacement, compensation or return.
11.If it is established that a complaint is unjustified, the Seller is entitled to charge the costs incurred in connection with handling the complaint, including the investigation costs, to the Customer.
12.Any claims against the Seller by virtue of this article and article 13 (liability and indemnification) will lapse if and as soon as the Customer sells and exports the delivered Goods to the United States and/or Canada.
Article 12. (Product) recall
1. The Seller is obliged to provide the Customer with every cooperation if the Seller, for whatever reason, proceeds to – whether or not at the instruction(s) of its supplier and/or the manufacturer and/or the party equivalent thereto of the delivered Goods – remove the Goods it delivered from the market, or to issue warnings, or to take other corrective measures relating to the Goods it delivered (recall).
2. If the Seller initiates a product recall, the Seller is entitled to buy back from the Customer all Goods which are the subject of the recall and which are on stock at the Customer’s, such against payment of the price charged to the Customer. In that event, the Customer will be obliged to deliver these Goods to the Seller in a manner to be determined by the latter.
3. Insofar as Goods that are the subject of the recall have already been sold or sold on and delivered by the Customer, the Customer will provide the Seller with every cooperation and will provide the Seller with all information that the Seller deems necessary in order to inform the purchasers or end users in respect of the recall or, at the latter’s instruction, provide such information directly to the manufacturer and/or the party equivalent thereto and/or the supplier of the Seller.
4. With due observance of the provisions of article 13, the Seller will compensate the Customer for all reasonably incurred costs in connection with its cooperation with the recall, if, in respect of the delivered Goods, the Seller can be regarded as the manufacturer of the delivered Goods.
Article 13. Liability and indemnification
1. Should the Customer fail in the proper, timely and complete performance of that to which it is bound towards the Seller, the Customer will be responsible for all damage (including all reasonable extrajudicial costs of settlement) that arises directly or indirectly on the part of the Seller.
2. The total liability of the Seller under the Agreement and these General Terms and Conditions – irrespective of whether such ensues from default, unlawful act or otherwise – is limited to compensation for direct losses, such up to an amount equal to the amount that the Customer paid for the Goods in question.
3. Direct damage is exclusively understood as: the reasonable costs for establishing the cause and scope of the damage, insofar as such establishment concerns damage in the sense of these General Terms and Conditions, any reasonable costs incurred in order to repair the defective performance of the Seller in order to meet the requirements of the Agreement, insofar as these can be attributed to the Seller, and reasonable costs, incurred to prevent or limit damage, insofar as the Customer demonstrates that these costs resulted in a limitation of direct damage as referred to in these General Terms and Conditions.
4. Any liability on the part of the Seller for indirect damage, including consequential loss, loss of profit, lost savings or loss arising from claims by the customers of the Customer and damage as a result of interruption of business operations or otherwise, or by third parties and/or subordinates engaged by the Customer, is excluded.
5. In addition to the cases referred to in paragraph 2 and 5, the Seller bears no liability for compensation whatsoever, regardless of the ground on which a claim for compensation may be based. The limitations referred to in paragraph 2 and 5 will however lapse, if and insofar as the damage or loss is the result of intent or wilful recklessness on the part of the Seller’s management.
6. Any claim for compensation on the basis of these General Terms and Conditions will lapse, if and as soon as one year has expired since the delivery of the Goods in question without a claim being submitted to the Seller in writing.
7. In countries where the exclusion and/or limitation of liability as included in the General Terms and Conditions cannot be relied on, the liability of the Seller will always be limited to the extent permitted by law.
8. The Customer hereby explicitly indemnifies the Seller against all third-party claims relating to the Goods delivered by the Seller to the Customer and, more in particular, also claims arising from Goods defectively delivered to the Customer by the Seller (due to product liability), as well as with regard to intellectual property rights, and all claims by or on behalf of its subordinates, except in the case of loss resulting from intent or gross negligence on the part of the Seller.
9. If the Seller is held liable by third parties under the provisions of the previous paragraph, the Customer is obliged to assist the Seller both in and outside of court and to immediately do all that could be expected from it in that case. If the Customer remains in default with regard to taking the adequate measures in that context, the Seller is entitled to proceed to take these measures itself, without notice of default being required. All costs and damage on the part of the Seller arising therefrom will be for the account of the Customer.
Article 14. Applicable law and jurisdiction
1. All legal relationships between the Seller and Customer are exclusively governed by German law. Applicability of the Vienna Sales Convention is explicitly excluded.
2. Any disputes that can arise between the Parties in relation to this Agreement will be submitted to the competent District Court in Augsburg - Germany, unless mandatory statutory jurisdiction rules stand in the way of this choice.