General Terms and Conditions of Falken Tyre Europe GmbH („Falken“)
A. General Delivery Conditions
1. a) These conditions of sale and delivery apply exclusively to business entities (Section 14 German Civil Code (BGB)) and legal entities. The conditions constitute an integral part of all quotations and contracts for deliveries and services by Falken, including those from current and future business relationships. Agreements and orders are only valid when issued in written form. No ancillary verbal agreements are made. Proof to the contrary is not excluded.
1. b) Delivery and invoicing take place under the prices and conditions valid on the day of conclusion of the contract. Falken delivers only to its direct customers in Germany in accordance with Incoterm DDP. A service charge, set on a case-by-case basis, applies to deliveries to third parties or to delivery addresses outside Germany. If expedited delivery is specified (e.g. air freight, express delivery) the ordering party will pay the difference between the normal freight costs and the additional costs.
2. Binding delivery times must be agreed separately and individually. Part-deliveries are acceptable. The delivery time will be appropriately extended in cases of unforeseeable, exceptional events that are unavoidable despite all reasonable care taken under the individual circumstances, particularly cases of force majeure and other disruptive events experienced by us, our suppliers or the transport companies, such as disruption to operations or traffic; fire; flooding; shortage of labour, energy or raw materials; industrial action; non-granting or revocation of approvals or permissions or other official measures; and prohibition of exports or imports. If the goods are ready for consignment but delivery is delayed for reasons beyond Falken’s control, the risk is transferred to the ordering party upon receipt of notice of readiness of the goods for shipment. Shipment is deemed to have taken place on this date.
3. Goods supplied in accordance with contract cannot be returned. In exceptional cases in which Falken accepts the return of goods supplied in accordance with contract, the goods must be visually and technically in perfect order and ready for resale. In this case Falken is entitled to charge a one-off returns processing fee to cover costs arising from the return process (particularly logistics costs) plus the statutory rate of VAT. The goods are only deemed returned after a positive quality inspection at Falken’s central warehouse. The net price valid on the day of return will be credited to the customer, less any discounts or other conditions. If the net price on the day of delivery was lower than the net price on the day of return, the net price on the day of delivery will be credited.
4. We are entitled to require payment in advance for deliveries in the event of notice of insolvency proceedings, filing of or swearing of an affidavit over a schedule of assets, repeated delays in payment, clear indication of significant deterioration of the liquidity situation of the ordering party or any change in the ownership of the company or ordering party.
B. Retention of title
1. The goods supplied remain the property of Falken up to payment in full of all claims from the business relationship, including any outstanding current account amounts. If the ordering party falls into arrears or otherwise infringes the ordering party’s contractual obligations to a more than minor extent, Falken will be entitled to withdraw from the agreement and require return of the goods.
2. The ordering party is entitled to resell the retained goods during the course of normal business. However, pledging the goods or assigning them by way of security is prohibited.
3. The ordering party will assign receivables from the resale of the retained goods to Falken with effect from the present date; Falken will accept the assignment. However, the ordering party will be entitled to collect the receivables provided it is not in arrears over the fulfilment of its obligations to Falken or does not cease payments to same and provided no insolvency proceedings concerning its assets are filed or opened or any out-of-court settlement is made. The ordering party undertakes to provide Falken on request with all information concerning the assigned claims necessary for Falken to institute collection of said claims and to provide Falken with all necessary documents for the procedure and to inform the debtor of the assignment immediately.
4. Any treatment, processing or installation of the retained goods undertaken by the ordering party involves no obligations on the part of Falken. Where the retained goods are processed, combined or installed with other items which are not the property of Falken, Falken will be entitled to a proportionate share of ownership of the new item, equal to the proportion of the value of the remaining processed goods accounted for by the retained goods at the time of processing, combination or installation. If the ordering party purchases sole ownership of the new item, the parties agree that the ordering party grants Falken a proportionate share of ownership of the new item equal to the pro; this proportionate share of ownership is free of charge for Falken. If the retained goods are resold together with other goods, irrespective of whether they are processed, combined or installed or whether resale takes place after processing, combination or installation, the above-described advance assignment applies only to the proportion of the value accounted for by the retained goods resold together with the other goods.
5. The ordering party will immediately inform Falken of any pledge, confiscation or other enforcement measures, or powers of disposal by third parties over the retained goods or claims assigned in advance, and will provide any documents necessary for intervention.
6. If the realizable value of the goods supplied as collateral under retention of title exceeds the secured claims by more than 10%, Falken will release a corresponding part of the collateral, selecting the collateral for release at its own discretion.
C. Conditions of payment
1. Prices are binding and apply DDP (Incoterms 2000) to deliveries in Germany. They are given in EURO subject to the applicable rate of statutory Value Added Tax, and are shown exclusive of costs of packaging, loading, shipping, transport insurance, customs and handling costs. Deliveries abroad are subject to transport costs, customs duties and ancillary costs. Falken accepts no liability for any taxes or fees charged abroad. Where no fixed prices are agreed, Falken’s currently applicable list prices apply. Amounts invoiced by Falken are payable within 15 days of the date of shipment (invoice date) subject to timely receipt of the invoice. Discounts are not given. This provision does not apply where deviating provisions were stated or agreed on the invoice or in the contract.
2. The date of receipt of payment is the date on which the amount is available for our use or credited to our account. The risk of payment method is borne by the ordering party. Falken reserves the right to make deliveries against payment in advance, cash payment or payment on delivery only, particularly in the event of first orders or after failure to observe payment due dates.
3. Bills of exchange and cheques are only accepted as conditional payment and are credited subject to receipt of the full amount. Their acceptance is conditional. Costs and discount fees are borne by the ordering party. Falken accepts no liability for correct presentation and protest of a bill. In the event of protest of a bill of exchange, any claims initially offset against bills due for later payment are payable immediately. Predated cheques will not be accepted.
4. The ordering party may only offset payment claims where the counterclaim is undisputed or res judicata. Deductions (discounts, bonuses etc.) which are not agreed expressly and - as a minimum condition, upon conclusion of the contract - in writing will not be recognized.
D. Liability and warranty provisions
1. The scope of delivery and performance by Falken is exclusively decided by the written order confirmation from Falken and/or any documents referred to therein. Our technical information concerning the items for delivery – including any diagrams, drawings and technical information – does not constitute any guarantee or statement concerning the quality of the goods. Public statements, claims or advertising on the part of the seller or manufacturer do not constitute any contractual statement concerning the quality of the goods. The right to introduce technical improvements without announcement to, or consultation of, the ordering party is reserved. Falken guarantees the following terms for the goods delivered:
2. Where the goods and/or performance supplied by Falken are defective, including any lack of contractually agreed quality, Falken may replace or repair the goods at its own discretion, with a minimum of two attempts at repair or replacement. The condition for said replacement or repair is that the serial number or manufacturer’s mark have not been removed or rendered illegible.
3. Visible defects in the goods and/or performance must be reported in writing immediately after delivery of the goods or detection of the defects.
4. If the ordering party receives faulty or insufficient instructions, Falken will only be obliged to supply fault-free instructions, and only where the faulty or insufficient nature of the instructions conflicts with correct assembly.
5. The right to introduce technical improvements without announcement to, or consultation of, the ordering party is reserved.
6. The period of limitation on defects is one year, beginning with transfer of the goods to the ordering party.
7. Warranty on Falken’s performance will be granted based on the following conditions: Falken is liable without limitation under statutory provisions in the event of breach of contractual obligation by Falken or its agents on the grounds of intent or gross negligence or in cases of damage to life, limb or health or where Falken has assumed guarantee obligations. Liability for minor negligence is excluded except in cases of infringement of a cardinal contractual obligation. In this case the amount of liability is limited to contractually typical foreseeable damages.
8. Warranty claims are excluded in cases where a fault or defect has arisen due to improper use or treatment, such as a) failure to comply with specified air pressure b) failure to comply with load and speed specifications for individual tyre sizes c) use of tyres in rallies and races, d) incorrect fitment by the customer or third parties on rims that are not true to gauge or are rusted or otherwise faulty or defective, e) natural wear and tear, f) unsuitable equipment, g) Incorrect wheel positions or wheel arch faults (e.g. dynamic imbalance) and h) chemical, mechanical or thermal influences beyond the scope of Falken’s performance and control.
9. The above liability limitations in this Section D do not apply in cases of recourse against Falken as a supplier under Section 478 German Civil Code (BGB) or claims under Sections 1, 4 German Product Liability Act (PhG).
1. The place of fulfilment and jurisdiction for all claims arising from these Terms and Conditions of Business, particularly with respect to deliveries by Falken, is Offenbach. This also applies to sales or deliveries undertaken from a different location. Falken is also entitled to file suit with courts with jurisdiction for the domicile of the ordering party. The law of the Federal Republic of Germany applies exclusively, excluding applicability of its statutory conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. If individual provisions are or become invalid in whole or in part, the validity of the Agreement and the remaining conditions of sale, delivery and payment will remain unaffected. The parties undertake to replace invalid or unfeasible provisions or conditions with valid provisions that most nearly approach the intended purpose.
3. Differing terms and conditions of business are invalid even where we do not expressly object to them; they only apply where recognized individually in writing by us.