AGB

General Terms and Conditions of TANAKI AUTO PARTS AG

(Status: September 2021)

 

1 General - Scope and definitions

The following General Terms and Conditions (hereinafter referred to as "GTC") shall apply to services and deliveries (hereinafter referred to collectively as "Deliveries") of TANAKI AUTO PARTS AG ("TANAKI" or "we") to customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code) as well as to legal entities under public law and special funds under public law (hereinafter referred to as "customers"), unless otherwise agreed. The customer's terms and conditions shall not become part of the contract, even if we do not expressly object to them. The GTC are available on our website for viewing, printing or downloading.

 

2 Offer - offer documents, conclusion of contract, content of contract

2.1 Our offers are subject to change.

2.2 The offer serves as the basis for a concrete offer by the customer to conclude a contract. The customer is bound to his order for a period of 10 days from receipt by us, unless otherwise stated in the order. 

2.3 A contract on the offer is only concluded by written order confirmation or delivery by TANAKI.

2.4 Illustrations, drawings, indications of weight, color and dimensions provided by us in connection with the conclusion of the contract shall only be approximate values unless they are a) expressly designated as binding or b) material. 

2.5 Quality, durability and other specifications shall only constitute a guarantee if they are expressly agreed and designated as such in writing.

2.6 Verbal collateral agreements or promises made by our employees that go beyond the content of the written contract or change these terms and conditions to our disadvantage shall only be effective after written confirmation.

2.7 When purchasing branded products, the "Additional Terms and Conditions for the Sale of Branded Products" of the manufacturers concerned shall apply as an integral part of these Terms and Conditions of Delivery and Payment. 

2.8 We reserve the property rights and copyrights to illustrations, drawings, plans, calculations and other documents. They may not be copied or otherwise reproduced or made available to third parties without our express written consent.

2.9 If a contract is not concluded, the customer is obligated to immediately return to us the documents provided to him.

 

3 Prices

3.1 Our prices are FCA our delivery plant Incoterms® 2020, which is specified in the order confirmation, net in EUR plus the applicable VAT and excluding transport packaging; this will be invoiced separately.

3.2 In the case of delivery periods of more than 2 months or in the case of annual contracts or other framework contracts or price agreements with a term of more than 2 months, we shall be entitled to increase the agreed prices accordingly insofar as significant changes in the costs of raw materials, materials or energy, salary costs or costs for public charges have occurred after conclusion of the contract and we are not responsible for these changes. A price increase will not be greater than 5%.

 

4 Terms of payment - Default in payment - Counterclaims

4.1 Unless expressly agreed otherwise with the customer, payment shall be made in advance. In the case of regular customers, we can agree with the customer payment on account. In these cases, our invoices are payable within 14 days of the invoice date without deduction. Longer payment terms deviating from this are also always calculated from the invoice date and are recorded in our order confirmation. All payments shall be made free TANAKI's paying agent.

4.2 In the event of default in payment, we shall charge interest at a rate of 9 percentage points above the prime rate, but at least 10%.

4.3 Insofar as we are able to prove higher damages caused by delay, we shall also be entitled to assert such damages. The reminder costs incurred by us, up to € 40,--, will be charged additionally.

4.4 In the event of cessation of payments and if other circumstances become known which are likely to reduce the creditworthiness of the customer, all our claims shall become due immediately. In such cases, we shall also be entitled to perform outstanding services only against advance payment or provision of security or to withdraw from the contract. 

4.5 Our customer may assert a right of retention against a payment claim only with objections based on the same contractual relationship as this payment claim. He shall only be entitled to withhold payments or to offset them if the counterclaim is undisputed or has been legally established.

4.6 Claims of the customer against us may only be assigned or pledged to third parties with our prior written consent.

 

5 Transfer of risk for deliveries - packaging

5.1 Unless otherwise stated in the order confirmation, delivery FCA is our delivery plant Incoterms® 2020 agreed. If the shipment is delayed through no fault of our own, the risk shall pass as soon as we have notified the customer that the goods are ready for shipment, even if we have exceptionally assumed other services, e.g. the shipping costs or shipment, also by our own transport persons.

5.2 We shall take back our packaging that is produced in Germany but not by private end consumers within the meaning of the Packaging Act (VerpackG) at our place of business during normal business hours; the customer shall bear the costs of the return shipment. The packaging must be returned clean, free of foreign matter and sorted by type.

 

6 Terms of delivery - Deadlines for deliveries and services

Reservation of self-delivery - Consequences of default

6.1 Deadlines for deliveries and services are approximate deadlines and therefore non-binding.

6.2 Our obligation to deliver is subject to timely and correct self-delivery by our suppliers, unless the incorrect or delayed self-delivery is our fault. In these cases we can withdraw from the contract.

6.3 The delivery period shall commence on the date of dispatch of the order confirmation, but not before clarification of all details of the order execution and technical questions as well as receipt of an agreed down payment or payment security, and shall be deemed to have been complied with if the goods have been loaded onto the means of transport provided by the customer by the delivery date. If shipment is delayed through no fault of our own, the delivery deadline shall be deemed to have been met upon notification that the goods are ready for shipment. 

6.4 Compliance with the deadlines for our deliveries presupposes the fulfillment of the customer's contractual obligations. If this is missing, the deadline for TANAKI shall be extended by a reasonable period of time.

6.5 Unforeseen, unavoidable events for which we are not responsible (e.g. pandemic, force majeure, flood disasters, strikes or lockouts, operational disruptions, difficulties in procuring materials or energy, transport delays, shortages of labor, energy or raw materials, measures taken by public authorities, as well as difficulties in obtaining permits, in particular, the supply of goods or services) shall be deemed to have occurred without our prior written consent. import and export licenses) extend the delivery period by the duration of the disruption and its effects. This shall also apply if the obstacles occur at our suppliers or during an existing delay.

6.6 If the impediment is not only of temporary duration, both contracting parties are entitled to withdraw from the contract. Claims for damages are excluded in the cases mentioned in clause 6.5. 

6.7 If we are in default with the delivery due to circumstances for which we are responsible and if the customer suffers damage as a result, our liability in the event of simple negligence shall be limited to 0.5% per complete week of the default, but in total to a maximum of 5% of the net invoice amount of the part of the delivery affected by the default. Compensation for damages in lieu of performance pursuant to Section 10 shall not be affected thereby. 

6.8 We are entitled to make partial deliveries or partial performance in reasonable circumstances.

 

7 Export control, export ban, embargo regulations

7.1 Products delivered by us are intended to be used and remain in the country of delivery agreed with the customer. In particular, technical products, hardware and computer software may be subject to embargo regulations and their export from the supplier country may be prohibited or subject to authorization. In addition, we may be contractually obligated to comply with export prohibitions. 

7.2 If the customer exports our products to other countries, he is solely responsible for compliance with any applicable regulations up to the end user. In particular, it is the customer's responsibility to inform himself about the respectively applicable export and import regulations (e.g. at the Federal Office of Economics and Foreign Trade Control and at the U.S. Department of Commerce, Office of Export Administration), to comply with these regulations, and to obtain any necessary approvals himself. 

7.3 Upon request, we will inform the customer whether further contractual export bans exist. However, also in this respect, the customer is solely responsible for the further observance of these export prohibitions. 

 

8 Delayed acceptance of delivery - delivery on demand

8.1 If our customer does not accept the contractual delivery, he shall nevertheless make the payments agreed for the delivery.

8.2 If the delivery is to be made on call and the customer does not call off the delivery or agreed on partial delivery within the contractually agreed period, this shall have the consequence that the customer shall also remain obliged to make the agreed payment.

8.3 The customer shall be obliged to compensate us for any damage caused by delay as a result of non-acceptance or failure to call off the goods, including any additional expenses.

8.4 If the customer does not comply with his acceptance or call-off obligation within a reasonable period set by us even after a written request, we shall be entitled to refuse performance of the contract and to claim damages in lieu of performance. The same shall also apply to any (partial) deliveries that may still have to be called off in the future.

 

9 Claims of the customer for defects

9.1 The customer's claims for defects presuppose that the customer has properly fulfilled its obligation to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).

9.2 Loss, damage to the transport packaging and obvious transport damage must be claimed from the transport person upon delivery and confirmed by him in writing on the delivery document. 

9.3 Only our product description shall be authoritative for the agreed quality within the meaning of Section 434 (1) sentence 1 BGB. Public statements, recommendations or advertising statements do not constitute a contractual statement of quality. 

9.4 Insofar as there is a defect in the delivery, we are entitled, at our discretion, to remedy the defect or to make a replacement delivery. We are obliged to bear the necessary expenses, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the goods have been taken to a place other than the customer's commercial establishment after delivery.

9.5 If we are not prepared or not in a position to remedy the defect/replace the delivery, if this is delayed beyond a reasonable period for reasons for which we are responsible, or if the remedy/replace of the rectification of defects/replacement delivery fails in any other way, the customer shall be entitled - in the case of significant defects - to withdraw from the contract or to reduce the remuneration and to claim damages in lieu of performance in accordance with Section 10.

 

10 General Liability - Statute of Limitations

10.1 We shall be liable in the event of intent or gross negligence, fraudulent concealment of defects, injury to life, limb or health or under the Product Liability Act in accordance with the law. In the event of an assumed warranty, we shall be liable in accordance with any warranty provisions. 

10.2 In the event of simple negligence, we shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the customer regularly relies on and may rely on, and - unless otherwise provided for in Section 6.7 for damages caused by delay - limited to the compensation of the foreseeable and typical damage. In all other cases, our liability is excluded. 

10.3 Claims of the customer due to defects shall become statute-barred after 12 months from the passing of risk, other claims after 12 months from the statutory commencement of the limitation period. However, if the delivered goods have been used for a building in accordance with their customary use and if the goods have caused its defectiveness, the limitation period shall be five years, unless the delivered goods have been used for the building on the basis of a contract in which Part B of the German Construction Contract Procedures (VOB/B) has been included in its entirety. In this case, the shorter limitation periods of the VOB/B shall apply. Notwithstanding p. 1 of this clause 10.3, in the event of our liability due to the assumption of a guarantee, the guarantee provisions shall apply and in the event of fraudulent concealment of a defect as well as in the event of claims for damages under the Product Liability Act, due to injury to life, body or health and due to intentional or grossly negligent breach of obligations, the statutory limitation provisions shall apply. 

 

11 Retention of title

11.1 We retain title to the goods until all our claims against the customer arising from the business relationship, including claims arising in the future, including claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims have been included by us in a current invoice and the balance has been struck and acknowledged.

11.2 During the existence of the reservation of title, the customer is prohibited from pledging or assigning the goods as security. We must be informed immediately of any access by third parties to the goods subject to retention of title. Costs incurred by the defense against access shall be borne by the customer unless they can be recovered from the third party.

11.3 If our reserved goods are mixed, combined or processed with other items, this shall be done free of charge for us. In the event of treatment or processing, we shall acquire co-ownership of the new item in the ratio of the invoice value of our reserved goods to that of the other items at the time of the activity. If an item is to be regarded as the main item, we shall acquire co-ownership of the main item in the ratio of the value of our reserved goods to the total value of the same at the time of the activity. The customer shall store all items for us free of charge.

11.4 The reserved goods may only be resold by the customer in the ordinary course of business. He hereby assigns to us all claims in the amount of the gross invoice total with all ancillary rights which accrue to him against his customers from the resale of the reserved goods. We accept the assignment. The customer remains entitled to collect these claims as long as he fulfills his obligations towards us. If third-party rights exist to the goods subject to retention of title, the customer's claim shall pass to us in proportion to the value of our co-ownership share to the total value of the items. The customer shall immediately pay to us any amounts collected, insofar as our claims are due.

11.5 If the customer no longer meets his payment obligations, we may revoke the authorization for resale and further use and demand that the customer disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify his debtors of the assignment. The taking back of goods subject to retention of title does not constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to dispose of it.

 

12 Place of performance, place of jurisdiction and applicable law

12.1 The place of performance for all obligations arising from the contractual relationship is our registered office, unless otherwise stated in the order confirmation.

12.2 For all legal disputes arising from the contractual relationship as well as its origin and effectiveness, the local or regional court responsible for our place of business in Lörrach shall be the place of jurisdiction, provided that our customer is a merchant. However, we are also entitled, at our discretion, to appeal to the local or regional court responsible for the customer's place of business.

12.3 German law applies. The UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.