GENERAL TERMS AND CONDITIONS
General Terms and Conditions for Consumers Version: February 2014
§ 1 Area of application and contractual basis
(1) These General Terms and Conditions (GTCs) only apply to consumers under Section 13, German Civil Code. A consumer is any natural person who enters into a legal transaction for purposes that can be attributed neither to their commercial nor to their independent vocational activities. The GTCs apply to all contracts entered into between GEMBALLA GmbH as the seller/party performing work and the customer as the buyer/ordering party for the delivery of goods and provision of factory services.
(2) All agreements made between us and you in connection with the contract derive, in particular, from these terms and conditions and from our written order confirmation.
3) Illustrations or drawings contained in our brochures, advertisements, price lists and other offer documentation are only approximate, unless the information contained therein has not been expressly designated as binding by us. Vehicles or performance-enhanced vehicles manufactured/delivered by us are not suitable for participation in competitive racing.
§ 2 Prices; payment
(1) Our gross prices include statutory VAT. In addition, we provide net prices exclusive of VAT
for information purposes.
However, our prices only include packing costs and delivery and shipping costs in cases where
special arrangements have been made with you to this effect. In the event that you revoke your declaration of intent to conclude
a purchasing agreement, you are required to bear the regular costs of returning the products, as detailed in the attached
withdrawal policy. We ask that you return the product in its original packaging.
(2) Unless we have established otherwise with you in writing, the purchase price payable by you is payable in advance without any discount as soon as you have received our invoice. For vehicle projects, a down payment of 50% is due on commissioning, with the remaining 50% payable prior to delivery. For contracts for work and services (e.g. inspections, repairs), compensation is due after acceptance of our services and prior to delivery.
§ 3 Offsetting; right of retention
You are only entitled to make offsets against our claims to the extent that your claims have been legally established, we have acknowledged them, or if your claims are not in dispute. You are also entitled to make offsets against our claims if you assert defect complaints or counterclaims arising from the same contract. As the buyer/ordering party, you may only exercise a right of retention if your counterclaim is based on the same contract.
§ 4 Delivery and performance period
(1) Our delivery dates or delivery deadlines are non-binding specifications only, except in cases where they have been expressly established as binding between you and us.
(2) In the event that we culpably fail to adhere to a delivery date expressly established as binding, or to a delivery deadline expressly established as binding, or if we are otherwise in default, you must provide us with a reasonable grace period for effecting performance. If we allow this grace period to expire without result, you shall be entitled to withdraw from the purchasing agreement.
(3) Subject to the restrictions set out in § 5 below, we are also liable to you in accordance with statutory provisions in cases where the contract concerns a fixed-date transaction, or where you are entitled, as a result of delayed delivery attributable to us, to invoke the cessation of your interest in contractual fulfillment.
(4) We are entitled to make partial deliveries and render partial performance at any time, to the extent that this is reasonable to you.
§ 5 Rights in the event of defects and delays; liability
(1) In the event that the delivered object or factory performance does not possess the quality agreed between you and us, or if it is generally not suitable for the use presupposed under our agreement or for use in general, or if it does not possess the properties you reasonably expected based on our public statements, we shall be obligated to provide supplementary fulfillment. This is not the case if we are entitled to refuse supplementary fulfillment by law.
(2) We are liable in accordance with statutory provisions for injuries to life, body and health resulting from a culpable breach of duty by us, by our legal representatives or by our vicarious agents. Furthermore, we are liable in accordance with statutory provisions for other damages resulting from willful or grossly negligent breaches of contract or fraudulent intent by us, our legal representatives or our vicarious agents. Insofar as the Product Liability Act is applicable, we are liable under its provisions without restriction. We are also liable within the framework of a quality and/or durability warranty to the extent that we have provided such a warranty with respect to the delivered object. Should damages occur which, though due to the fact that the quality or durability guaranteed by us was not present, did not occur immediately in the goods delivered by us, we shall only be liable for such damages where the risk of such damages is clearly covered under our quality and durability warranty.
3) If damage is caused by a simple negligent breach of a material contractual obligation, i.e. by the simple negligent breach of an obligation whose fulfillment renders possible proper contractual performance in the first place and in whose fulfillment you have a legitimate expectation as the buyer/ordering party, our liability shall be limited to the foreseeable, typically occurring damages. Vehicles or performance-enhanced vehicles manufactured/delivered by us are not suitable for participation in competitive racing, motorsport competitions and are not to be driven on race-tracks.
4) There are no further liability claims that may be asserted against us, irrespective of the legal nature of the claims that you may bring against us.
§ 6 Limitation period
(1) For contracts for work and services, the limitation period for claims by the ordering party due to a defect is 1 (one) year. For sales contracts for used items, the limitation period for claims by the buyer due to a defect is also 1 (one) year. Sales contracts and works supply contracts for new items are subject to the statutory limitation periods.
(2) The limitation periods under the Product Liability Act remain unaffected in every case. Damage compensation claims by the buyer/ordering party for injuries to life, body and health and which are based on a culpable breach of duty by us, our legal representatives or vicarious agents, as well as damage compensation claims based on intentional or grossly negligent breaches of contract or fraudulent intent by us, our legal representatives or vicarious agents, are governed exclusively by the statutory limitation periods. The same applies to damage compensation claims by the ordering party/buyer pursuant to § 5 Para. 3.
§ 7 Retention of title
Delivered goods (reserved goods) remain our property until complete satisfaction of all receivables under this contract.
§ 8 Final provision, applicable law, binding nature of German version
(1) This contract is subject to the laws of the Federal Republic of Germany, with the exception of its provisions on the conflict of laws. The UN Sales Convention is not applicable.
(2) These General Terms and Conditions have also been prepared in English. However, the German original of the General Terms and Conditions shall be the only binding version.
Right of withdrawal for consumers
Consumers possess the following right of withdrawal:
Right of withdrawal
You may revoke your contract statement in written form (e.g. by letter, fax or e-mail) within 14 days without specifying any reason or – if the goods are relinquished to you prior to the expiration of the deadline – by returning the goods. The period begins to run after receipt of this policy in written form and upon delivery of goods, though not before receipt of the goods by the recipient (in the event of recurring delivery of similar goods, not before receipt of the first partial delivery), and not prior to fulfillment of our duties of information pursuant to Art. 246 § 2 in conjunction with § 1 Paras. 1 and 2, EGBGB [Introductory Act to the Civil Code] as well as our duties pursuant to § 312g Para. 1 p. 1, Civil Code in conjunction with Art. 246 § 3, EGBGB, though in the case of services not prior to conclusion of the contract and not before fulfillment of our duties of information pursuant to Art. 246 § 2 in conjunction with § 1 Paras. 1 and 2, EGBGB, as well as our duties pursuant to § 312g Para. 1 p. 1, Civil Code in conjunction with Art. 246 § 3, EGBGB. Timely dispatch of the withdrawal notice or the item is sufficient for satisfying the withdrawal period. The withdrawal notice should be sent to:
Fax: +49 (0) 71 52/9 79 90-99
Consequences of withdrawal
In the event of effective withdrawal, the performances received by both parties are to be returned, and any benefits received (e.g. interest) are to be surrendered. If you are unable to return performance received or surrender benefits received (e.g. benefits from use) to us, or are able to do so only in part or in a deteriorated state, you are required to compensate us accordingly. In the event of services, this may entail that you will have to fulfill contractual payment obligations for the time prior to withdrawal. You are only required to provide compensation for deterioration of the item and for derived benefits if these benefits or the deterioration are attributable to handling of the item going beyond a review of characteristics and functionality. "Review of characteristics and functionality" refers to testing and trying out the goods in question, as is both possible and customary in a retail store. Items which can be consigned in a package are to be returned to us at our risk. You are required to bear ordinary costs for such returns if the delivered product corresponds to the ordered product and if the price of the item to be returned does not exceed the amount of EUR 40, or, in the event of a higher price, you have not rendered consideration or a contractually stipulated partial payment as of the time of cancellation. Otherwise, return shipment shall be at no charge to you. Items which cannot be consigned in a package will be collected from you. Obligations to refund payments must be satisfied within 30 days. The period begins to run for you upon dispatch of your withdrawal notice, or the item, and begins for us upon receipt. Special notes: In the event of a service, your right of withdrawal shall expire prematurely if the contract has been satisfied in full by both parties at your express request before you have exercised your right of withdrawal. - End of cancellation policy -
General Terms and Conditions for Entrepreneurs Version: February 2014
§ 1 General, area of application
(1) The present General Terms and Conditions (GTCs) apply to all of our business relationships with our customers (hereinafter: "buyer" and/or "ordering party"). The GTCs shall apply only where the buyer/ordering party is an entrepreneur (§ 14, German Civil Code), a legal entity under public law, or a special fund under public law.
(2) The GTCs apply in particular to contracts regarding the sale and/or delivery of movables (hereinafter also: "goods"), irrespective of whether we ourselves manufacture the goods or if we purchase them from suppliers (§§ 433, 651, German Civil Code), and to factory performances. The GTCs are also applicable in their current version as a framework agreement to future agreements regarding the sale and/or the delivery of movables and factory performances with the same buyer/ordering party, without us being required to refer back to them in each case; in the event of changes to our GTCs, we will inform the buyer/ordering party without delay.
(3) Our GTCs shall apply exclusively. Differing, conflicting or supplementary General Terms and Conditions on the part of the buyer/ordering party shall only form part of the contract once and insofar as we have expressly consented to their validity. This consent requirement is applicable in each case, including instances in which we execute delivery to the customer or render factory performance to him without reservation even in the knowledge of the buyer's/ordering party's General Terms and Conditions.
(4) Individual agreements entered into from case to case with the buyer/ordering party (including collateral agreements, supplements and amendments) shall in all cases take precedence over these GTCs. The content of any such agreement shall be established by a written agreement or by our written confirmation.
(5) Legally material declarations and notices to be submitted to us by the buyer/ordering party after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) require written form in order to be valid. (6) References to the validity of statutory provisions shall only be of clarifying significance. Therefore, the statutory provisions shall also apply even in the absence of such clarification insofar as they are not directly amended or explicitly excluded in these GTCs.
§ 2 Conclusion of contract
(1) Our offers are without obligation and non-binding. This shall also be the case if we have provided the buyer/ordering party with catalogs, brochures, advertisements, price lists, technical data and other product descriptions or documents (including in electronic form), to which we reserve both title and copyright.
(2) The order of the goods/factory performance by the buyer/ordering party is deemed as a binding contractual offer. Unless otherwise specified in the order, we shall be entitled to accept this contractual offer within five days of its receipt by us.
(3) Such acceptance may either be declared in writing (e.g. in the form of an order confirmation) or by delivering the goods to the buyer or executing the factory performance. (4) We will forward orders received from outside the Federal Republic of Germany to the responsible importer (if available) as a non-binding inquiry.
§ 3 Delivery deadline and delayed delivery
(1) The delivery deadline shall be agreed from case to case, or be specified by us upon acceptance of the order. Insofar as this is not the case, the delivery deadline shall be approximately two weeks from conclusion of the contract.
(2) Insofar as we are unable, for reasons for which we cannot be held responsible, to adhere to binding deadlines set out in purchase agreements (non-availability of the service/performance), we will immediately inform the buyer of the same, while also informing the buyer of the estimated new delivery period. If the service/performance remains unavailable during the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the buyer will be reimbursed by us immediately. Non-availability of the service/performance in this sense includes, in particular, non-timely delivery by our suppliers if we have entered into a congruent hedging transaction, and if neither we nor our suppliers are at fault or if we are not required to make the purchase in a particular case.
(3) The time of occurrence of a delay in delivery on our part is based on statutory regulations. In any case, the buyer/ordering party must issue a reminder. Should we fail to deliver on time, the buyer/ordering party is entitled to demand flat rate damages to compensate for the delay. For each full calendar week of delay, flat rate damages shall comprise 0.5% of the net price (delivery value), yet no more than 5% of the delivery value of the goods/factory performance in default of delivery. We reserve the right to prove that the buyer/ordering party suffered no damages at all, or damages considerably less than the above flat rate.
4) The rights of the buyer/ordering party pursuant to § 8 of these GTCs as well as our legal rights, especially in the event of the exclusion of the obligation to perform (e.g. due to the impossibility or unreasonableness of performance and/or supplementary fulfillment) remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, delayed acceptance
(1) Delivery is from stock, which is also the place of performance. At the request and at the expense of the buyer/ordering party, the goods will also be sent to another destination (purchase to destination). Unless otherwise agreed, we are entitled to determine the type of dispatch ourselves (in particular freight forwarder, shipping route, packaging).
(2) The risk of accidental loss and accidental deterioration in the goods/factory performance is transferred to the buyer/ordering party no later than upon handover. In the event of purchase to destination, however, the risk of accidental loss and accidental deterioration of the goods/factory performance, as well as the risk of delay, shall be transferred upon delivery of the goods to the carrier, the freight forwarder or other person or institution designated to effect the dispatch. Insofar as acceptance has been agreed, for contracts for work and services, acceptance shall be decisive with regard to the transfer of risk. In other respects as well, the statutory provisions governing contracts for work and services are applicable, mutatis mutandis, to the agreed acceptance and to contracts for work and services. Delayed acceptance by the buyer is the equivalent of handover or acceptance.
(3) If the buyer/ordering party is in default of acceptance, if he fails to cooperate, or if our delivery is delayed for other reasons attributable to the buyer/ordering party, we shall be entitled to demand compensation for the damages arising therefrom, including additional expenses (e.g. storage costs). We assess flat rate damages in the amount of EUR 50 per calendar day, beginning with the delivery deadline or, in the absence of a delivery deadline, with the notification that the goods are ready to ship, or that the factory performance is complete. We reserve the right to prove higher damages, and our legal claims (especially compensation of additional costs, reasonable compensation, termination) remain unaffected; however, the flat rate damages are to be offset against any further monetary claims. The buyer/ordering party is entitled to prove that we have suffered no damages whatsoever, or damages that are significantly lower than the above flat rate.
§ 5 Prices and payment terms
(1) Unless otherwise agreed in a particular case, our updated prices as of conclusion of the contract shall be applicable; these prices are stated "from stock" and are exclusive of VAT insofar as VAT is applicable.
(2) In the event of purchase to destination (§ 4 Para. 1) the buyer/ordering party shall bear transport costs from stock and the costs for any transport insurance desired by the buyer/ordering party. Any duties, fees, taxes and other public charges are to be borne by the buyer/ordering party. We do not redeem transport packaging or other packaging subject to the Packaging Ordinance. Such packaging becomes the property of the buyer/ordering party, with the exception of pallets.
(3) The price of purchase is due and payable upon receipt of the invoice and prior to the delivery of the goods. For vehicle projects, 50% of the price of purchase is due on commissioning, with the remaining 50% payable prior to delivery. For contracts for work and services, compensation is due after acceptance of our services and prior to delivery.
(4) The buyer/ordering party will be in default upon expiration of the above payment deadline. During the delay, the price of purchase/compensation is subject to the respective statutory default interest rate. We reserve the right to assert additional damages related to the delay. With respect to merchants, our claim to commercial maturity interest (§ 353, German Commercial Code) remains unaffected.
(5) The buyer/ordering party shall only be entitled to rights of offset or retention insofar as his claim has been legally established or is not in dispute. In the event of defects in the delivery, opposing rights on the part of the buyer/ordering party remain unaffected.
(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price/compensation is in jeopardy due to the buyer's/ordering party's inability to pay (e.g. as evidenced by a petition to initiate insolvency proceedings), we shall be entitled to withhold performance in accordance with statutory provisions and (possibly after a deadline has been fixed) to withdraw from the contract (§ 321, German Civil Code). For contracts regarding the manufacture of unique items (custom manufacturers), we may declare our withdrawal at once; the statutory provisions regarding the dispensability of setting a deadline remained unaffected.
§ 6 Retention of title
(1) Until complete satisfaction of all our current and future claims under the contract and those arising from an ongoing business relationship (secured claims), we retain the ownership title to the goods sold.
(2) Goods subject to reservation of title may neither be pledged to third parties nor pledged as collateral prior to the complete satisfaction of our secured claims. The buyer must inform us immediately in writing if to the extent that our goods should become encumbered by third-party rights.
(3) In the event of breach of contract by the buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with statutory provisions and/or to demand the surrender of the goods on the basis of the retention of title. The demand regarding surrender of goods does not at the same time imply a declaration of withdrawal; instead, we shall be entitled to demand surrender of the goods while reserving the right to withdraw. Should the buyer fail to pay the purchase price due, we may only assert these rights after first having specified a reasonable payment deadline to the buyer without success, or if the fixing of such a deadline can be dispensed with under the applicable statutory provisions.
(4) The buyer is entitled to resell and/or to process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products resulting from the processing, co-mingling or combination of our goods at their full value, where we are deemed to be the manufacturer. In the event that our goods are processed, co-mingled or combined with the goods of a third party and a third-party title should persist in these goods, we shall acquire co-ownership in proportion to the invoice values of the processed, co-mingled or combined goods. Moreover, such products are subject to the same provisions as goods delivered under retention of title.
(b) As collateral, the buyer hereby assigns to us any claims against third parties arising from the resale of the goods or the product in full, or in the amount proportionate to our co-ownership in accordance with the above paragraph. We accept such assignment. The obligations on the part of the buyer set out in Para. 2 are also applicable with regard to the assigned claims.
(c) The buyer shall remain authorized to collect the claim, in addition to us. We undertake not to collect the claim as long as the buyer satisfies his payment obligations in respect of us, is not in default of payment, does not file a petition to initiate insolvency proceedings, and there is no other deficiency in his ability to pay. However, if this is the case, we may demand that the buyer inform us of the assigned claims and their debtors, that the buyer provide all information required for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment.
(d) If the realizable value of the collateral exceeds our claims by more than 10%, we will release items of collateral of our choice at the buyer's request. (5) Statutory entrepreneurial rights of distraint for contracts for work and services remain unaffected.
§ 7 Defect claims by the buyer/ordering party
(1) The buyer's/ordering party's rights in the event of defects in both quality and title (including both incorrect and insufficient deliveries as well as improper installation or deficient installation instructions) shall be subject to statutory provisions except as otherwise specified below. In all cases, special statutory provisions in effect upon final delivery of goods to a consumer (supplier recourse pursuant to §§ 478, 479, German Civil Code) remain unaffected.
(2) Our liability for defects is based primarily on the agreement made regarding the quality of the goods/factory performance. All product descriptions forming part of the contract in question are deemed to constitute agreements regarding the quality of the goods/factory performance; it makes no difference whether the product description comes from the buyer/ordering party, from the manufacturer or from us.
(3) Insofar as the quality was not agreed, an assessment is to be made, based on the statutory rules, as to whether a defect is present or not (§ 434 Para. 1 pp. 2 and 3, Civil Code). Vehicles or performanceenhanced vehicles manufactured/delivered by us are not suitable for participation in competitive racing, motorsport competitions and are not to be driven on race-tracks.
(4) If the delivered item is defective, we may initially choose whether to provide supplementary fulfillment by eliminating the defect (remedy) or by delivering an item free of defects (replacement delivery) or remanufacturing the work. Our right to refuse supplementary fulfillment in accordance with statutory requirements remains unaffected.
(5) The buyer/ordering party must provide us with the required time and opportunity to render the supplementary fulfillment, in particular by surrendering the rejected goods for purposes of testing. In the event of replacement delivery, the buyer shall be required to return the defective item to us in accordance with statutory provisions. Supplementary fulfillment includes neither removal of the defective item nor reinstallation, given that we were not originally required to provide installation.
(6) We will bear the expenses associated with testing and supplementary fulfillment, in particular transport, travel, labor and material costs (not removal and installation costs) in cases where there is in fact a defect. If the buyer's/ordering party's defect remedy request turns out to be unjustified, we may demand that the buyer/ordering party reimburse us for related expenses.
(7) In urgent cases, e.g. where there is a danger to operational safety or in order to avert excessive damages, the buyer/ordering party shall be entitled to remedy the defect himself, and to demand that we provide compensation for the objective expenses required to this end. The buyer/ordering party must inform us without delay of any such instances of self-remedy. The right to self-remedy does not apply if we would have been entitled to refuse such supplementary fulfillment under the relevant statutory provisions.
(8) In cases where the supplementary fulfillment fails or where a reasonable deadline for supplementary fulfillment to be set by the buyer/ordering party has elapsed without success, or where such a deadline can be dispensed with under the relevant statutory provisions, the buyer/ordering party may withdraw from the contract or reduce the purchase price/compensation. However, there is no right to withdrawal in the event of insignificant defects.
(9) Damage claims or claims for the reimbursement of wasted expenses by the buyer/ordering party are only possible subject to § 8 and are otherwise excluded.
§ 8 Other liability
(1) Insofar as these GTCs, including the following provisions, do not specify otherwise, we shall be liable for breaches of contractual and non-contractual obligations in accordance with the pertinent statutory provisions.
(2) We shall be liable for damages (irrespective of legal grounds) in case of intent and gross negligence. In the event of simple negligence we shall only be liable a) for damages arising from injury to life, body or health, b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment renders possible proper contractual performance in the first place and in whose fulfillment contractual parties have and may have a legitimate expectation); in this case, however, our liability shall be limited to compensation for foreseeable, typically occurring damages.
(3) The liability limitations set out in Para. 2 do not apply insofar as we have fraudulently concealed a defect or have assumed a warranty regarding the quality of the goods/factory performance. The same applies to claims on the part of the buyer/ordering party under the Product Liability Act.
(4) On the basis of a breach of duty that does not constitute a defect, the buyer/ordering party is only entitled to withdrawal or termination if we are responsible for the breach of duty. An unrestricted right of termination by the buyer/ordering party (in particular pursuant to §§ 651, 649, Civil Code) is excluded. In other respects, statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) Notwithstanding § 438 Para. 1 No. 3 and § 634 a Para. 1 No. 1, German Civil Code, the general limitation period for claims related to quality and legal defects is one year. For sales contracts and work performance contracts, the limitation period begins to run upon delivery. For contracts for work and services, the limitation period begins to run upon acceptance.
(2) Special statutory arrangements for third-party goods surrender claims (§ 438 Para. 1 No. 1, Civil Code), in the event of fraudulent intent on the part of the seller (§ 438 Para. 3, Civil Code) and for supplier recourse claims in the event of final delivery to a consumer (§ 479, Civil Code). (3) The above limitation periods under sales law/the law on contracts for work and services are also applicable to contractual and non-contractual damage claims by the buyer/ordering party based on a defect in the goods, except in individual cases where application of the ordinary legal limitation period (§§ 195, 199, Civil Code) would result in a shorter period of limitation. The limitation periods under the Product Liability Act remain unaffected in every case. Otherwise, damage claims by the buyer/ordering party pursuant to § 8 are subject only to the statutory limitation periods.
§ 10 Choice of law and jurisdiction
(1) These GTCs and all legal relationships between us and the buyer/ordering party are subject to the laws of the Federal Republic of Germany to the exclusion of international uniform law instruments, especially the UN Sales Convention. The requirements and effects of retention of title pursuant to § 6 are subject to the laws in effect at the respective location of the item, insofar as subsequent choice of law in favor of German law should be invalid or ineffective.
(2) If the buyer/ordering party is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive (including international) jurisdiction for all disputes arising from the contractual relationship, whether directly or indirectly, is that of our registered offices at 71229 Leonberg. Nevertheless, we are also entitled to bring legal action in the general jurisdiction of the buyer/ordering party.