General Terms and Conditions of Falken Tyre Europe GmbH („Falken“)
A. General Terms and Conditions of Supply
1. a) These Terms and Conditions of Sale and Supply shall apply exclusively towards businesses (sect. 14 BGB (German Civil Code)). They shall be an integral part of all offers and contracts in relation to supplies and services of Falken, including in any current and future business relation. All agreements and orders must be in writing in order to be binding. There are no verbal side agreements. This shall not exclude any evidence to the contrary. Service, supply and invoicing shall be performed on the valid General Terms and Conditions in the version most recently notified by Falken.
b) Any offers of Falken shall be without obligation and non-binding, unless they have been expressly marked as binding. Placement of the purchase order by the customer shall be regarded as a binding contract offer. The contract shall not come into being until Falken accepts the customer’s purchase order in writing (e.g. by order confirmation). Falken shall not be obliged to accept any contract offer.
c) Any prices at the time the purchase order is placed by the customer shall be fixed prices only if this has been expressly agreed in writing. Otherwise, Falken reserves the right to base any invoicing of supplies ex warehouse on the prices and conditions valid as of the date of shipment and any invoicing of supplies ex works on the prices and conditions valid as of the date of supply. In particular, Falken reserves the right to adjust the prices in case of any changes in costs between placement of the purchase order and supply, with Falken not being responsible for their occurrence. If any change in costs occurs and Falken has informed the customer in writing about any price adjustment before supplying, the customer shall be entitled to withdraw from the customer’s purchase order. Falken is to be advised of such withdrawal in writing immediately after notification of the price adjustment and before supplying.
d) The supply shall be performed ex warehouse or works to direct buyers of Falken subject to the currently valid Incoterms 2020 as agreed in the contract or agreed upon with the order confirmation. In this case, Falken shall be entitled to determine the type of shipment (in particular transport person, packaging and shipping route) itself. If the supply is made to third parties, Falken shall charge a service fee, which is to be agreed on a case-by-case basis. If expedited shipment is agreed (e.g. air freight, dispatch goods, express), the customer shall bear the difference between the costs for freight and the higher expenses. In addition, Falken reserves the right to levy possible surcharges for small quantities (i.e. one tyre) and/or island supplies.
2. Any binding supply times are to be agreed separately and individually. Partial supplies shall be admissible. The supply period shall be extended appropriately for any unforeseeable, exceptional events that cannot be avoided despite using the due diligence requisite and reasonable according to circumstances of the case, in particular cases of force majeure and any other disturbing events on the part of Falken, our suppliers or the transport companies, such as disruptions of operations or traffic, fires, floods and any other natural disasters, shortage of labour, energy or raw materials, industrial action, war, civil war or riots, pandemics, prohibitions of export and import or any other official measures. If the goods have been shipped and acceptance is delayed for any reasons for which Falken is not responsible, the risk shall pass to the customer once acceptance is possible. Shipment shall be deemed to have taken place at this time.
3. Any return of goods supplied as per contract shall be excluded. Any goods supplied as per contract shall be exceptionally taken back by Falken only with statements on the supply reference. In addition, these must be in a technically and visually perfect condition and suitable for resale. In this case, Falken shall be entitled to charge a take-back lump sum for the costs incurred for taking back the goods (in particular logistics costs), plus statutory VAT. If it turns out that the goods are not in a perfect condition and are suitable for resale, the customer either has to collect the goods at own expense or has to cause Falken to dispose of them. The goods shall be deemed to have been taken back only after a positive outcome of a quality check in the Falken central warehouse. The original invoice value for the supplier, except for any lump sums for air freight, dispatch goods, express, small quantities, any energy and procurement cost lump sum as well as island surcharges, shall be credited whilst deducting any cash discounts and other subsequent discounts granted. Moreover, Falken reserves the right to check any bonus credits already created, the basis of calculation of which shall include any returned goods, and, where appropriate, to reduce or reclaim these proportionately with retroactive effect.
4. In case of any filing of insolvency proceedings, any application for or issuance of any affidavit in relation to any list of assets, any payments delayed several times, any clear indications of a substantial deterioration of the customer’s liquidity situation or any change in the ownership of the company or the customer, we shall be entitled to demand supplier on advance payment.
B. Retention of title
1. Title to the goods supplied shall remain with Falken until all receivables from the business relationship, including any potential current account balance, have been paid in full. If the customer defaults on any payment or breaches any own contractual duties to a not only minor extent, Falken shall be entitled to withdraw from the contract and to reclaim the goods.
2. The customer shall be entitled to realienate the goods subject to retention of title in the customer’s normal course of business, but shall not be permitted to make any pledging or chattel mortgaging.
3. The customer shall already assign the receivables from the realienation of the goods subject to retention of title to Falken here and now, with Falken accepting the assignment. However, the customer shall be entitled to collect the receivables as long as the customer does not default on any fulfilment of own obligations towards Falken, ceases any payments, any insolvency proceedings in relation to the customer’s assets have been applied for or commenced or any out-of-court settlement proceedings are conducted. Upon request, the customer has to provide Falken with any information about the assigned receivables that are necessary or the collection, has to hand over to Falken all documents required to that end and has to notify the debtor of the assignment without delay.
4. Any potential treatment, processing or installation of the goods subject to retention of title shall be carried out by the customer for Falken, without this giving rise to any obligations for Falken. In case of any processing, combination or installation of the goods subject to retention of title with any other objects not owned by Falken, Falken shall be entitled to the co-title to the new item arising in this context at the ratio between the value of the goods subject to retention of title and the remaining processed goods at the time of processing, combination or installation. In the event that the customer acquires sole title to the new item, the contracting parties are in agreement that the customer shall grant Falken co-title to the new item in proportion to the value of the processed or combined or installed goods subject to retention of title and shall store it free of charge for Falken. If the goods subject to retention of title are realienated together with any other goods, whether without or after processing, combination or installation, the above-agreed advance assignment shall apply only in the amount of the value of any goods subject to retention of title that are realienated together with the other goods.
5. The customer has to advise Falken without delay of any attachments, seizures or other compulsory enforcement measures or any disposals by third parties in relation to the goods subject to retention of title or the receivables assigned in advance whilst handing over the documents necessary for any intervention.
6. If the realisable value of the collaterals above exceeds the secured receivables by more than 10%, Falken shall release a corresponding part of the collaterals; the selection of the collaterals to be released shall be incumbent upon Falken.
C. Terms of Payment
1. The prices shall be binding and, unless any other currency has been expressly agreed, in euros, plus the respective statutory VAT as well as, depending on the supply conditions agreed in writing or with the order confirmation under the Incoterms 2020, any transport, customs and ancillary costs as well as, unless already included in the list price, the legal green levy (eco-fee). Falken reserves the right to additionally charge an energy and procurement lump sum. Falken shall not be liable for any taxes or duties arising abroad. Unless any fixed prices have been agreed, the respective valid list prices of Falken under section A.1.c) shall apply. Unless otherwise agreed or disclosed, any amounts shall be due within 15 days after the date of invoice. Any cash discount shall not be granted. This shall not apply if anything to the contrary was noted on the invoice or set forth in the contract.
2. The date of receipt of payment shall be deemed to be the day on which the amount is available to Falken or credited to the bank account of Falken. This risk of the payment method shall be borne by the customer. Falken reserves the right to perform any supplies only against cash in advance, especially for first orders or after any payment due dates have been exceeded.
3. Any bills of exchange and checks shall not be accepted.
4. The customer shall be entitled to set off only if the customer’s counterclaim is uncontested or has been finally and non-appealably established. Any deductions (discounts, bonuses etc.) that have not been expressly committed shall not be acknowledged.
5. Falken shall be entitled to set off against any and all receivables that are due to the customer towards Falken.
D. Liability and Warranty Terms
1. The scope of the supplies and services of Falken shall be governed solely by the written order confirmation of Falken or the documents referred to there. Our technical statements there about the subject-matter of supply, including illustrations, drawings and technical statements, shall be neither any guarantee nor any statement of nature. Any public statements, advertisements or promotions by the seller or manufacturer shall not be any statement of nature of the goods as per contract. Any technical improvements, even in the absence of any announcement and coordination with the customer, shall remain reserved. Falken shall warrant for the supplied goods under the following provisions:
2. If the goods supplied and/or services rendered by Falken are defective, which shall also include any absence of the contractually agreed quality, either replacement shall be supplied or subsequent improvement shall be performed at the option of Falken; in this case, not less than two attempts of subsequent improvement or replacement must be made. This shall be subject to the factory number or the fabrication sign not having been removed or obliterated.
3. Any recognisable defects in the goods and/or services must be notified in writing without delay, within one week after supply at the latest.
4. If the customer receives any deficient instruction, Falken shall only be obliged to supply a deficient-free instruction, provided that the deficiency in the instruction precludes proper fitting.
5. Any technical improvements, even in the absence of any announcement and coordination with the customer, shall remain reserved.
6. The limitation period for any rights for defects shall be two years. It shall commence upon handover of the goods to the customer.
7. Any warranty for the services of Falken shall be given subject to the following provisions: Falken shall be liable without limitation under the legal regulations to the extent that Falken or any of its vicarious agents has breached any duty under the contract by wilful intent or gross negligence or any injury to life, body or health has occurred or Falken has given any guarantee. Any liability for slight negligence shall be excluded, unless any duty essential for the contract (cardinal duty) has been breached. In this case, any liability shall be limited to the foreseeable damage typical of the contract.
8. Any warranty claims shall be excluded if any defect has arisen due to improper use or treatment, including, but not limited to,
a) due to any non-compliance with the prescribed air pressure,
b) any exceedance of the load and driving speed permissible for each individual tyre size,
c) any use for rally and racing purposes,
d) any incorrect fitting, including on non-standard, rusty or otherwise defective rims by the customer or third parties,
e) any natural wear and tear,
f) any unsuitable operating equipment,
g) any incorrect wheel position or faults in the wheel arch (e.g. dynamic unbalance) as well as
h) any chemical, mechanical or thermal influences outside the sphere of performance and influence of Falken.
9. The above limitations of liability of this section D shall apply neither to the extent that any claims to recourse under sect. 478 BGB are asserted against Falken as supplier nor to any claims under sect. 1, 4 German Product Liability Act.
E. Data Protection
1. Falken shall collect and processes personal data under the principles and on the basis of the GDPR and the BDSG (German Federal Data Protection Act). Any personal data that becomes known to Falken in connection with the business relationship shall hence be used by Falken exclusively within the scope of the stipulated purposes and to execute the contractual relationship.
2. a) Data subjects shall have a right to access, rectification, objection, restriction of processing and erasure of the data concerning them and may request the transfer of their data. If data subjects want to make use of these rights and to obtain any information about the data concerning them, they may contact the following data controller: Falken Tyre Europe GmbH, FAO the Data Protection Officer, Berliner Straße 74-76, 63065 Offenbach, e-mail: firstname.lastname@example.org
b) The right to lodge a complaint may be asserted towards the Hessian Data Protection Officer (email@example.com).
3. For the purpose of fulfilling the contract, Falken shall transfer personal data to its service providers and/or to the enterprises (group member companies) affiliated with it in terms of the German Stock Corporation Act. Any third-country transfer shall exclusively be based on an adequacy decision by the EU Commission; any use of standard clauses in the respective service provider contracts; subject to appropriate safeguards (Article 46 GDPR) or binding corporate rules (Article 47 GDPR); any element of derogation of Article 49(1)(2) GDPR (if the conditions of Articles 46 and 47 GDPR are not met); any individual approval by a supervisory authority. The customer may request access to any information about this and may contact the data protection officer of Falken for this purpose.
4. Any personal data concerning Falken or third parties that comes to the attention of the customer in connection with the order may be processed and used only to execute the contractual relationship and only on the basis of Article 6(1) GDPR (or Article 9 GDPR). The data must not be passed on to third parties. The customer undertakes to take all technical and organisational measures necessary for data protection and data security. The customer’s employees are to be obligated to ensure the confidential nature of the data.
5. Other than that, the data protection notices of the data controller (Falken) shall apply: https://www.falkentyre.com/en/Privacy%20Policy.
1. Place of performance and jurisdiction for all claims from the Terms and Conditions, in particular from the supplies by Falken, shall be Offenbach, even if any sales or supplies have been made from any other location. Falken shall be entitled to litigate at the courts having jurisdiction for the customer's registered office as well. The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Sales Law.
2. Should individual provisions be or become ineffective in whole or in part, this shall not affect the validity of the contract as well as of the other Terms and Conditions of Sale, Supply and Payment. The parties shall be obliged to replace any ineffective or unenforceable terms and conditions or contractual provisions by agreements which are effective and come as close as possible to the purpose pursued.
3. Any differing terms and conditions of business shall be ineffective, even if we do not expressly object to them; they shall apply only if they are acknowledged by us in writing in the given case.
Last updated: July 2022, Offenbach am Main