General Terms and Conditions
(hereinafter "General Terms and Conditions") of Track Tec GmbH (hereinafter "Track Tec”)
Version: June 2011
1. Validity of terms and conditions, written form
1.1 Track Tec delivers all goods and services exclusively on the basis of these General Terms and Conditions.
1.2 These General Terms and Conditions also apply to all future contracts between Track Tec and the customer even if they are not separately agreed again. They replace all terms and conditions that were previously agreed between Track Tec and the customer.
1.3 Terms and conditions of the customer that are contrary to or deviate from these General Terms and Conditions do not become part of any contract between Track Tec and the customer. Track Tec expressly rejects their applicability. This also applies if Track Tec carries out an order without reservation whilst being aware of contrary or additional terms and conditions of the customer. Track Tec equally does not accept terms and conditions even if Track Tec refers or replies to correspondence that contains terms and conditions of the customer or a third party or that makes reference to such.
1.4 Separate agreements, additions, modifications and supplementary agreements only apply if confirmed by Track Tec in writing.
2. Offer and conclusion of contract
2.1 Offers and prices of Track Tec are not binding and subject to change. Track Tec reserves the right to make technical changes and changes in shape, color, and/or weight to goods already ordered; any such changes will be within reasonable limits.
2.2 Track Tec is entitled to accept a contract offer made through an order by means of an order confirmation within two weeks following receipt of such order. The order confirmation can be made in writing, or by supply of the goods and/or services ordered. Confirmation of receipt of an order does not constitute a binding acceptance of such order.
2.3 If the cost for Track Tec to perform its obligations under an accepted order materially increase, Track Tec and the customer shall be obliged to enter into negotiations about an adaptation of the agreed prices.
2.4 If and to the extent that the customer wants Track Tec to conduct product testing measures, the type, amount and cost of such measures have to be agreed upon in writing. If no such agreement was made at the moment of order confirmation, all cost for such testing measures shall be borne by the customer.
2.5. Track Tec is entitled to use sub-contractors for the fulfilment of all or parts of its obligations vis-á-vis the customer. Such subcontractors shall be considered as vicarious agents (Erfüllungsgehilfen) in the terms of Section 278 of the German Civil Code (Bürgerliches Gesetzbuch).
3. Delivery time, time of performance, force majeure
3.1 Delivery times and times of performance stated by Track Tec are to be understood as indicative, non-binding, subject to change and subject to self-supply. Damage claims based on non-observance of delivery times and times of performance are excluded, except in cases where delivery times and/or times of performance have been agreed as “fixed” expressly and in writing.
3.2 If and to the extent that Track Tec and the customer entered into a purchase or other agreement, but did not bindingly agree on term, production batch size and/or acceptance dates, Track Tec can, after a period of three months after the order confirmation at the latest, request customer to enter into a binding agreement on these issues within 21 days after such request.
3.3 Track Tec may render partial performances unless such partial performance is not of interest for the customer.
3.4 Insofar as a delivery delay or delivery time was agreed as “fixed”, it refers to the time of transfer to the carrier or freight forwarder or to other companies charged with the transport of the goods. In all other cases, delivery delays and deadlines are deemed to have been observed if Track Tec was in a position to dispatch the goods in time, insofar as this ability to dispatch was communicated to the customer. 3.5 If and to the extent that a timely delivery is prevented by either (i) disturbances in the operations of Track Tec or its subcontractors that are demonstrably of material influence on the operations or (ii) labor disputes, the delay for the performance of Track Tec’s obligations extends for the duration of such disturbance, but not longer than 14 days.
3.6 If at Track Tec circumstances prevail, for which Track Tec is not accountable (nicht vertreten muss) and that materially impede or make impossible the fulfilment of its obligations by TrackTec, Track Tec is entitled to rescind the contract, if such impediment is not only of temporary nature. In the event of an unavailability of products, Track Tec will inform customer without undue delay (unverzüglich) and will reimburse without undue delay (unverzüglich) any considerations received for such products until that date. In the event of a temporary impediment, the delay for delivery extends for the period of time of such impediment plus an appropriate additional delay.
3.7 If (i) Track Tec has failed to meet a deadline, and (ii) the buyer sets an appropriate additional delay for delivery or performance, it is entitled, after this period has expired to no avail, to rescind the contract. In this case, statutory claims apply to both the consideration for Track Tec and the claims of the buyer, but only within the limits set in Section 8 below.
4. Dispatch and transfer of risk
4.1 The risk of accidental loss or accidental deterioration of the goods passes to the customer when the object for delivery is handed over to the carrier or freight forwarder or to other companies charged with carrying out the dispatch. This also applies to partial deliveries.
4.2 If delivery or dispatch is not made for reasons that lie outside the responsibility of Track Tec, the risk of accidental loss or accidental deterioration of the goods will pass to the customer as soon as Track Tec reports to the customer its readiness to deliver.
4.3 Customer’s delay in accepting goods shall have the same legal consequences as the handing over of the goods.
5. Prices and payment
5.1 The prices from the price list of Track Tec that is valid on the day the order is placed apply. The rate of Value Added Tax applicable at such time as well as the costs for packaging and delivery are not included in these prices. The prices are understood EXW.
5.2 If and to the extent, the parties have not agreed otherwise, invoices of Track Tec are payable net without deductions upon receipt.
5.3 If the payment period is exceeded, the customer is in arrears (Verzug), without a reminder (Mahnung) being necessary.
5.4 Track Tec is entitled to request reasonable advance payments that correspond to the status of Track Tec’s performance of its obligations at the date of such request.
5.5 Track Tec can, at its discretion, set off payments of the customer against costs, interest and debts of the customer, and will in this case inform the customer about the way in which such set-off is being carried out.
5.6 The customer only has a right of set-off payment if its counter-claims (i) have been confirmed by final and irreversible judgment of a court, or (ii) are undisputed or are recognized by Track Tec in writing.
5.7 The customer can only invoke a right of retention on the basis of its own counter-claims if the counter-claims relate to the same contractual relationship and if such counter-claim is established by a final court decision or recognized in writing by Track Tec. However, customer does have a right of retention if and to the extent that either (i) Track Tec has violated its contractual obligations with intent or gross negligence or (ii) it has been determined that the product or service supplied is materially defective.
5.8 If (i) the customer is in arrears (Verzug) with an amount of 10 % or more of all payments due or (ii) the customer ceases to have a commercial credit insurance or (iii) there are reasonable doubts as to the credit worthiness of the customer, Track Tec is entitled to make the performance of its obligations dependent on advance payments or collaterals.
6. Retention of title
6.1 Track Tec retains title in delivered goods until all of its claims against the customer arising out of the current business relationship have been met in full, except if and to the extent that at the time of the delivery, the value of all security of Track Tec exceeds the claims by more than 10 %.
6.2 To the extent the value of the security mentioned above exceeds the claims of Track Tec by more than 10% in total, Track Tec will return or release the excessive securities upon request. It is in the discretion of Track Tec, which securities will be returned or released. 6.3 The customer is entitled to process and to sell the Reserved Goods in proper business dealings as long as it is not in arrears (Verzug). The customer may not impawn (verpfänden) unpaid goods or transfer title in unpaid goods by way of security. All claims arising from the resale or based on any other legal grounds in respect of the Reserved Goods (including all current account receivables) are hereby assigned to their full extent by the customer to Track Tec by way of security. Track Tec grants the purchaser revocable authorization to collect in its own name for the account of Track Tec the claims assigned to Track Tec. This authorization to collect claims can be revoked if the purchaser does not fully comply with its payment obligations.
6.4 If third parties seize the Reserved Goods, the customer will advert such third parties to the fact that the Reserved Goods are property of Track Tec and will notify Track Tec without undue delay (unverzüglich). Where the customer fails to comply with terms and conditions of the contract - in particular in the case of payment arrears (Zahlungsverzug) - Track Tec is entitled to take back the Reserved Goods or, where necessary, to demand the assignment of the customer’s right to possession in respect of third parties. The customer is liable jointly and severally with the third party for the reimbursement of the court and out of court costs of legal action pursuant to § 771 German Code of Civil Procedure (Zivilprozessordnung – ZPO) or any provision of similar import applicable.
6.5 The repossession (Zurücknahme) or the attachment (Pfändung) of the reserved goods by Track Tec does not in itself constitute a rescission (Rücktritt) from the contract.
7.1 Track Tec warrants the compliance with the specifications explicitly set forth in the order and order confirmation. With respect to measures, the DIN norms are decisive for compliance. In offer documents and order confirmations, Track Tec indicates measures and weights to the best of its knowledge. For the rest, Track Tec will perform the obligations set forth in the order and order confirmation with the diligence of a prudent merchant (ordentlicher Kaufmann) and with due regard to the applicable norms and stipulations. Beyond this warranty, Track Tec only warrants qualities and/or characteristics specifically agreed on in writing between the parties. Claims made by the customer in respect of defects are only valid if it has properly observed its due obligations to check and complain under § 377 of the German Commercial Code (“Handelsgesetzbuch – HGB”).
7.2 The warranty period is one year counting from when the goods are delivered.
7.3 Apart from this, the statutory rules of warranty apply subject to the proviso that Track Tec may, in its discretion, either repair or replace defective deliveries or services. The customer is only entitled to exercise its further statutory rights if (i) two attempts by Track Tec to repair or replace have failed or (ii) such supplementary performance has been refused by Track Tec or has not been carried out in an appropriate way; however, even then, only within the limits set in Section 8 below. If in such case the customer opts to rescind the contract (zurücktreten), the customer cannot prevail itself of any damage claims with respect to the defect. If the customer opts for damage claims, the defective object remains at the customer's except where this is unreasonable (unzumutbar) or something else was specifically agreed on in writing.
7.4 If and to the extent that Track Tec’s obligations include a work to be performed in the meaning of Section 631 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), the acceptance by customer of such work will take place in the plant of Track Tec in which such work was performed. Upon notice of readiness for acceptance, customer will conduct such acceptance at its own cost. To the extent possible, customer will conduct partial acceptances (Teilabnahmen). Track Tec can set an appropriate time limit for conducting acceptance. If no acceptance is conducted within such time limit, Track Tec may in its discretion either (i) ship the respective good or (ii) store the respective good at the customer’s risk and expense; with either of these measures, Track Tec’s payment claim becomes due. The customer is not entitled to refuse acceptance on ground of immaterial (unwesentlich) defects.
8.1 Track Tec is liable for intent or gross negligence. For slight negligence, Track Tec is only liable if it culpably fails to fulfil an essential contractual obligation (wesentliche Vertragspflicht), whereas the liability is limited to the damage that is predictable and would typically occur.
8.2 The mere delivery of defective goods as such does not constitute a failure to fulfil essential contractual obligations (wesentliche Vertragspflichten).
8.3 Further liability - irrespective of the legal nature of the claim made - is excluded. This applies particularly to claims based on violations of contract or tort.
8.4 Track Tec is not liable for consequential damages (Folgeschäden), particularly due to lost profits or intangible damages (immaterielle Verluste).
8.5 Claims for damages against Track Tec are statute-barred one year after delivery of the goods, unless Track Tec is charged with intent or gross negligence. The statute of limitations for claims based on tort remains unaffected by this.
8.6 Liability due to culpable harm to life and limb remains unaffected. This also applies to mandatory liability in accordance with the German Product Liability Act (Produkthaftungsgesetz).
8.7 Insofar as the liability of Track Tec is excluded or limited, this also applies in respect of the personal liability of employees, staff, free-lancers, representatives and agents of Track Tec.
If and to the extent that Track Tec performs any of its obligations on the basis of drawings or other specifications provided by the customer, and the performance of such obligations violates third parties’ rights, the customer will defend Track Tec against and indemnify Track Tec with respect to any such claims.
The customer will use all business and company secrets that he is made or becomes aware of during the business relationship exclusively for the purpose of the performance of its agreements with Track Tec. The customer will exploit such business and company secrets neither during nor after the business relationship and will keep them secret vis-á-vis third parties during and after the business relationship.
11. Applicable law, place of jurisdiction, severability
11.1. Applicable law for these General Terms and Conditions and all legal relationships is the law of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods. Place of performance for deliveries and payments is the respective plant of Track Tec in which the ordered good is manufactured as set forth in the order or order confirmation. The exclusive place of jurisdiction for the customer for all disputes resulting directly or indirectly from or in connection with the contractual relationship is Düsseldorf, Germany. The same applies if the customer does not have a place of jurisdiction in Germany or if its place of residence or habitual abode is unknown at the time of the legal action. Track Tec reserves the right to take legal action against the customer at his place of residence, his registered business address or where a branch office is located.
11.2 The statutory place of jurisdiction for default proceedings (Mahngerichtsstand) remains unaffected.
11.3 Should a provision in these General Terms and Conditions or a provision within the context of other agreements with the customer be or become invalid, the validity of all other provisions in these General Terms and Conditions or other agreements is, in cases of doubt, unaffected.