GENERAL TRADING AND SUPPLY CONDITIONS
We exclusively operate on the basis of our General Standard Terms and Conditions. Terms and conditions of our suppliers and customers, which are in derogation thereof, shall be non-binding upon us, even if they have not been expressly opposed by us. This shall apply exclusively to the laws of the Federal Republic of Germany, excluding the UN right of purchase.
1a) Individual arrangements, which we do not expressly acknowledge in writing, shall be non-binding upon us, even if they have not been expressly opposed by us.
1b) Our offers shall be non-binding and without engagement. As soon as the order has been confirmed, the contract is deemed to have been concluded and shall be legally binding upon both parties. Agreements, which are made by telephone, verbally, by fax or e-mail, as well as collateral agreements, must be confirmed by us in writing in order to be effective.
2a) Purchaser agrees to adhere to the agreed upon date of delivery and the delivery deadline.
2b) A fixed date of delivery will be agreed upon only if warranted in writing. The date of delivery is deemed to have been met, if purchaser receives the products before the date of delivery, or
2c) if the agreed upon dates of delivery cannot be kept as a result of force majeure, shutdown, shortage of energy or raw materials, strikes, lockouts, natural disasters, or the effects of acts of terrorism, etc. we shall be authorized, excluding all claims for damages whatsoever , to extend the dates of delivery, including a reasonable start-up phase, for the period of interference or to withdraw from the contract in part or in whole.
2d) We will be in default if purchaser reminds us in writing to deliver the service. This shall also apply if the time of delivery and rendering the services is fixed per calendar day. Purchaser is authorized to withdraw from the contract if following the default a grace period of at least two weeks has been set, and delivery has not been effected during that period.
2e) Compensatory claims and claims arising from default shall be excluded notwithstanding item 6, if purchaser is a legal person under pubic law, a special public fund, or a merchant, in which the goods and services to be supplied are part of Purchaser’s commercial enterprise or production company.
3. Assignments of accounts receivable
We are warranted to assign our demands as well as the reservation of proprietary rights to a third party.
4. Prices and Terms of Payment
4a) Our net prices (prices excluding the statutory rate of value-added tax) shall apply ex parent firm or works, excluding packaging. Purchaser shall bear the costs for transportation, such as shipping, loading or shipping insurance. These costs are not included in our net prices. Additional costs for transportation, as may be requested by purchaser, shall be born by purchaser.
4b) The prices, which apply on the date of delivery, shall be relevant. The payment for products and services will not be increased for products and services that are delivered or rendered with four months after conclusion of contract. In principle, our invoices become due for payment 30 days following the issue date, unless other terms of payment have been stipulated in writing.
4c) We reserve the right to accept bills of exchange subject to the proviso of discountability. Discount charges shall be born by purchaser.
4d) In the case of default in payment the complete demands will fall due. We are authorized to charge interest on arrears in the amount of 8 % on commercial transactions and in the amount of 5% for consumer transactions, which shall be above the base interest rate, as well as invoice and demand unpaid dunning charges and other relevant costs. Our charges for each reminder are as follows: Euro 5,-- for the first reminder, Euro 10,-- for the second reminder, Euro 15,-- for the third reminder. We reserve the right to assert additional damages caused by default,
4e) Orders for payment, remittances, cheques and bills will be accepted only following a special arrangement and in payment of the full debt (not in lieu of performance), subject to all collecting and discount charges. Rediscounting and prolongation for bills are deemed as non-performance.
4f) Discounts, such as volume discounts, cash discounts or other special allowances will be granted only on the basis of a special written agreement. Discounts of any type also are retroactive, if at the time of payment other outstanding payments are due to us or if purchaser becomes involved in composition or bankruptcy proceedings. No cash discount shall be granted for services rendered.
4g) Purchaser may offset our claims only if its counter-demands from us are undisputed or deemed non-appealable.
4h) If circumstances come to light which cast doubt on Purchaser’s solvency, we shall be authorized to deliver either against cash in advance or submission of collateral.
5. Reservation of Title
5a) In the case of orders concerning tyre repairs, cold retreadings or remouldings, as well as filled tyres purchaser transfers to contractor the title to its tyres, including wheels, as a collateral of claims arising from the works contract. Purchaser’s acquisition of property occurs when submitting tyres or mounted wheels.
5b) The delivered product shall remain our property until all obligations arising from the business relationship have been satisfied. If Purchaser is in default, we shall be authorized to demand that the product be returned or, should this be unsuccessful, pick up the products after an 8-day deadline or, if tyres are mounted onto a vehicle, detach them from the vehicle.
5c) If Purchaser is not in default of its obligations to us, Purchaser is authorized to resell the conditional product in the ordinary course of business. At this time, Purchaser shall assign to us its claims upon thirds parties, which arise from the sale of the conditional product. If Purchaser is not in default, it may at any time collect on our behalf the claim assigned to us, notwithstanding our own authorization to collect. Purchaser is obligated to provide us with any information concerning the whereabouts of the product and to furnish the required documents. This stipulation shall apply correspondingly if Purchaser uses the conditional product for a wage claim within the scope of a works and delivery contract.
5d) Reprocessing of our products is performed by us. In this case, we also shall reserve the right to the exclusive title of the product supplied by us, until all outstanding demands have been settled. In the case of Purchaser having processed, combined and mixed the conditional product with other products, we shall be entitled to a joint ownership of the new product in proportion to the invoice value of the other products used therein. If our ownership ceases as a result of combining or mixing said products, Purchaser shall submit to us at this time any titles it holds in the new product within the scope of the invoice value of the conditional product to which Purchaser is entitled, and preserve said value for us free of charge. The joint titles created thereafter shall apply as conditional product within the meaning of item 4b).
5e) At this time, Purchaser shall assign to us its claims against collision damage insurance or existing claims against the damaging party’s liability insurance or against the liable damaging party, which shall be in the amount of our claim if the vehicle, to which our conditional product is mounted, suffers any damage covered by collision damage or third-party insurance.
5f) If the value of the collateral, to which we are entitled, exceeds our claims by more then 20%, we shall, upon Purchaser’s demand, be obligated to release collateral of our own choice.
6. Liability for Defects
Within the scope of the following conditions, we shall be liable for the following defects:
— for a period of 2 years for new products;
— for a period of 1 year for reconditioned tyres.
The time limits for liability for defects always is computed from the time of delivery (customer taking delivery). The time limit of 1 year does not apply to claims for damages under Section 437 item 3 German Civil Code in the case of acting us the liability of item 6. In such a case the statutory time limits shall apply.
Defects should be reported as soon as possible.
In the case of transactions with other businesses, obvious defects must be reported in writing within 8 days after delivery (customer taking delivery), hidden defects must be reported within 8 days after they are discovered. In the case of non-compliance with this time limits for claims, the product supplied by us shall be deemed to have been accepted. In this case, claims arising from the liability for defects shall be excluded, unless it concerns claims for damages under Section 437 item 3 German Civil Code in the case of acting with intent and gross negligence.
As for the liability for defects in transactions with consumers, the customer has the option to request that the defect remedies or a replacement. In transactions with companies, we have the right to chose between remedy of defect or replacement. Should two attempts in remedying the defect or replacing the product result in failure, the customer is authorized either to reduce payment or cancel the contract. In the case of replacements, we are authorized to take into consideration a certain degree of wear of the product in question, which shall be reflected in the credit entry or in a correspondingly lower payment. The customer may chose between credit entry and payment reduction. Claims against us on account of liability for defects are excluded, if the defects, impairments or damage originally were caused
a) if the product we supplied was repaired by outsiders or processed by other means;
b) if the factory number, the manufacturing mark or other marks, which permanently are affixed to the product, no longer exist or were changed or, above all, were made unrecognisable;
c) if, in the case of tyres, it can be proven that the recommended air pressure was not maintained;
d) because tyres were subjected to excessive stress, above all, by exceeding the load and driving speed specified for the size and type of tyre;
e) tyres have become damaged due to improper wheel alignment or their performance has become impaired by other defects in the wheel housing (e.g. imbalance);
f) tyre are mounted on an incorrect, non-true to gauge size, rusty or otherwise defective wheel rim;
g) tyres have become defective due to external influences or mechanical damage, or because they were exposed to heat;
h) during a wheel change the wheel nuts and bolts were not checked for tightness after approx. 5 operating hours;
i) before mounting, the tyres were not stored properly (according to DIN 7716) by the customer or an assigned third party;
j) natural wear or damage of the product as a result of improper care or an accident.
k) Tube-type tyres with used tubes/flaps, with tubeless designs without valve replacement or without new sealing ring, were mounted by customer or outsiders;
l) or if the supplied product is a second-hand tyre, or if the product, which had been supplied by the customer for processing, contained hidden defects. In the case of a justified complaint about a defect of quality, we shall assume all costs incurred in connection with the warranty. Disputes relating to claims arising from a defect of quality should be settled through the independent arbitration authority of Bundesverband Reifenhandel und Vulkaniseurhandwerk e.V., Bonn, if our customer or we contact them in writing immediately after the disputes becomes known. Contacting the arbitration authority excludes the legal process.
During the arbitration proceedings, the limitation of claims is blocked. The arbitration authority will not act during a legal process, and it will discontinue its operation should a legal process be initiate during arbitration proceedings. The proceedings of the arbitration authority are subject to the rules of procedure which it submits to the parties on request. The arbitration proceedings are free of charge for both parties.
Warranty claims are excluded, if
a) the manufacturing mark is no longer in the wheel rim or has been changed;
b) defective wheel rims and/or tyres are supplied for the filling process by the contracting party, above all, this also applies to hidden defects;
c) tyres filled by us are processed by outsiders;
d) the wheel was exposed to excessive and/or improper stress.
Defects discovered by Purchaser must be reported immediately. In the case of hidden defects, Purchaser must report the defects immediately after their discovery.
7. Guarantee Bond
The guarantee covers all tyres retreaded by Roesler, which have a overall remaining tread depth of more than 5 mm.
Possible remedies to ease the defect related to the responsibility of Roesler, is the repair of the tyre, which falls under the terms of the guarantee of Roesler, or - if a repair is impossible, the substitution. If the tyre cannot be replaced with the same type, Roesler is entitled to supply a tyre of the same value.
Please note the following limitations of the guarantee:
1. A claimed tyre, accepted by Roesler, with a remaining tread of at least 70 percent of the original or initial tread depth (70% or more), leads to the repair or replacement at no costs.
If less than 70 percent of the original or initial tread depth is present, the cost of repair or replacement is burden proportionately by the party who claims the tyres.
• If less than 70 but more than 60 percent of the initial tread depth exists : Roesler contributes
70 percent of the cost, the other party bears 30 percent,
• If less than 60 but more than 50 percent of the initial tread depth exists: Roesler contributes
60 percent of the costs, the other party bears 40 percent,
• If less than 50 but more than 40 percent of the initial tread depth exists: Roesler contributes
50 percent of the cost, the other party bears 50 percent,
• If less than 40 but more than 30 percent of the initial tread depth exists: Roesler contributes
40 percent of the cost, the other party bears 60 percent,
• If less than 30 but more than 20 percent of the initial tread depth exists: Roesler contributes
30 percent of the cost, the other party bears 70 percent,
• If less than 20 but more than 10 percent of the initial tread depth exists: Roesler contributes
20 percent of the cost, the other party bears 80 percent,
• If less than 10 but more than 0 per cent of the initial tread depth exists:
Roesler carries no cost, the other party bears all costs.
2. A refund of the purchase price is ruled out.
3. It is essential during the period of guarantee, that damages caused by usual abrasion (such as tread wear, tread chipping, tread chunking, ground cracking, tread cuts, small stretches in the sidewall caused by repairs during the retreading, ozone cracks in the sidewall, radial cracks caused by insufficient air pressure, cracks above the flange ring and similar use-related damages), are not covered under this guarantee.
4. Damages and defects arising from misuse or improper use of the tyre are not covered under this guarantee.
5. Damages caused by external influence (e.g. damages caused by objects, such as rocks, stones, broken glass, nails, or else, as well as damages caused by overrunning obstacles, as well as damages caused by overload or low air pressure and thermal damage) are not covered under this guarantee.
6. Subsequent damages (e.g. collateral damages caused by the effects of the previous damage, for example, rental equipment costs, loss of profit, downtime costs, opportunity costs) are not covered under this guarantee.
Your legal warranty within the legal period of warranty remains intact besides this guarantee agreement and may exceed your granted rights of this guarantee.
We shall be liable for compensatory damage if we or our vicarious agents have acted with intent and gross negligence. Furthermore, we shall be liable if characteristic features were warranted or guaranties were given or if loss or damage was incurred, which resulted from our delay or was due to impossibility of performance which is to be justified by us. Moreover, we shall be liable should we be in breach of contractual obligations. In the aforesaid cases, the liability shall be limited to typical loss or damage which is foreseeable upon conclusion of contract. However, this shall not apply to transaction with consumers. In other respects, compensatory claims against us shall be excluded. Limit of liability or exclusion of liability shall not apply in the case of personal injury. Further, limit of liability and exclusion of liability shall not apply, provided we are liable in accordance with the Product Liability Act.
— All of Purchaser’s compensatory claims for direct and indirect loss or damage, including associated and consequential damage, against Purchaser and its vicarious agents shall be excluded, unless the loss or damage is based upon a legal representative or vicarious agent of Seller having acted with intent and gross negligence.
— Compensatory claims and claims arising from default shall be excluded notwithstanding
item 6, if Purchaser is a legal person under pubic law, a special public fund, or a merchant, in which the goods and services to be supplied are part of Purchaser’s commercial enterprise or production company.
— Additional the warranty and damage claim provisions of the tyre industry shall apply to all new tyres supplied by us.
9. Data Protection
We are authorized to process all data concerning Purchaser within the meaning of the German Data Protection Act, which we receive ourselves or from third parties within the scope of in connection with Purchaser’s business connection.
10. Place of Performance
The place of performance and the jurisdictional venue for both parties shall be Dortmund or Mainz, both in Germany. Unless the Purchaser is a legal person under pubic law, a special public fund, or a merchant, in which the goods and services to be supplied are part of Purchaser’s commercial enterprise or production company.
11. Salvation Clause
Should any individual provision or any part of any provision be or become invalid, illegal or uneforceable, the validity of the remaining provisions hereof shall in no way be affected. In such case the void and/or illegal and/or unenforceable provisions shall be replaced by a valid provision coming as close as possible to the sense and spirit and purpose of the Agreement.
12. Applicable Law
The laws of the Federal Republic of Germany shall apply exclusively, excluding international law on sales.
Our Terms and Conditions
Dortmund, January 2009