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General terms and conditions

Last updated: 01/2013 (valid from 01.04.2013)

1. Scope

1.1. The following terms and conditions apply to legal relations between the customer and odelo Deutschland GmbH ULO Aftermarket. Customer terms and conditions that run counter to or differ from those defined here are excluded and not recognised by us unless they have been expressly agreed in writing.

1.2. Arrangements that differ from these terms and conditions are only effective if they have been confirmed by ULO in writing.

2. Written form

Oral agreements and terms agreed by representatives and agents only take legal effect once we have confirmed them in writing.

3. Offer and quotation

Our offers are subject to confirmation in respect of price, delivery date and any other provisions. Quotations (cost estimates) are non-binding.

4. Prices and handling fees for small orders

4.1. List prices are non-binding. Those that are valid are ULO’s prices and discounts that apply on the order confirmation date, plus value-added tax at the statutory rate. The prices stated are “ex works” and do not include the cost of packaging, shipment and/or customs duties, which are charged separately.

4.2. We reserve the right to increase our prices appropriately within the course of a year and to adjust them in the event of unforeseeable factors for which ULO is not responsible, such as tool transfer/relocation, change of supplier(s) or changes in raw material prices.

4.3. For small orders we charge handling fees as follows: a. Orders of up to €300: lump sum of €10 b. Orders from €300 to €600: lump sum of €7.50 We reserve the right to add this fee to the bill or to invoice it separately.

5. Terms of payment

5.1. Net payment is due within 30 days of the invoice date unless agreed otherwise in writing.

5.2. Payment shall only be deemed to have been made once ULO can dispose over the invoice amount without loss.

5.3. In the event of default of payment by the customer, outstanding amounts are due with immediate effect. We are entitled, if the payment deadline is exceeded, to charge interest on arrears at 5% above the Deutsche Bundesbank base rate without serving formal notice of default. If the customer is in default, we are entitled without prejudice to our claims to reclaim the delivery item until we receive payment in full or to withdraw from the contract. The customer will bear 100% of the cost of returning the goods. Returns are only accepted in perfect and undamaged original packaging. The further pursuit of damage claims for nonfulfilment or the right to withdraw in full or in part from ongoing contracts and to withhold further deliveries until payment of the amounts due shall in no way be affected.

5.4. All outstanding accounts shall be due with immediate effect if payments are suspended or if the seller applies for debt settlement proceedings.

5.5. The customer may neither set off against counterclaims that we do not recognise nor assert a right of retention on the basis of these claims.

5.6. A deterioration in the customer’s creditworthiness in our opinion or an insufficient creditworthiness in our opinion, of which we only became aware subsequently, entitles us to demand immediate provision of security or payment of the purchase price prior to shipment or to withdraw wholly or in part from our delivery commitments without the purchaser being entitled to damage claims. Outstanding receivables shall be due for payment with immediate effect.

6. Deliveries and delivery times

6.1. Our delivery periods, dates and times are only approximate and are non-binding.

6.2. The customer is only entitled to withdraw from the contract if ULO is unable to deliver within the extension period agreed on an individual basis.

6.3. Claims for damage compensation are also ruled out on grounds of inability to deliver, delay, positive violation of contractual duty, culpa in contrahendo (fault in conclusion of a contract) and torts except in cases of intent or gross negligence on our part. In cases of default in taking delivery by the customer we are entitled to demand compensation for non-fulfilment and to withdraw wholly or in part from ongoing contracts after a 14-day extension.

6.4. The delivery period is extended by the duration of the hindrance resulting from force majeure, industrial action, circumstances beyond our control or unfavourable weather conditions. See also Section 11 (below).

6.5. If delivery is delayed at the customer’s behest, the goods will be kept in storage at the ULO warehouse at the customer’s risk and expense.

6.6. Partial deliveries are permissible and may as such be invoiced separately.

7. Shipping, packaging and transfer of risk

7.1. If nothing to the contrary has been agreed in writing, goods (including partial deliveries) will in all cases be despatched at the customer’s risk and expense.

7.2. Our freight charges are a flat rate per shipment based on the value of the goods: Up to €600: €7.50 From €600: carriage and packaging paid to the customer’s receiving station within Germany. Packaging is charged at cost and is non-returnable.

7.3. We reserve the right to adjust packaging units over the course of the year.

7.4. The transfer of risk from ULO to the customer takes place upon handover of the goods – including goods delivered at our expense – to the carrier.

7.5. Damages in transit must be notified without delay, within 8 days at the latest and in writing, and will be replaced on presentation of the carrier’s acknowledgement thereof.

7.6. Additional shipping costs due to a specific mode of shipment required by the customer, such as special delivery, are charged to the customer.

7.7. Collection by the customer does not entitle the customer to reimbursement of freight costs.

8. Acceptance of returned goods

In principle we acknowledge no obligation to accept returned goods we have duly and properly delivered. If, we state that we are prepared to take back ordered goods that are free of defects, they must be returned within 8 days along with the invoice and delivery note copies. We will only accept goods that can be resold in their perfect and undamaged original packaging. Inactive goods can on no account be accepted as returns. Returns must also be sent back carriage paid. We charge a storage and processing fee of 25% of the value of the parts. As a matter of principle we do not accept specially manufactured or procured goods as returns.

9. Warranty and liability

9.1. Notice of defects must be served in writing within 8 days of receipt of the goods at the specified destination. If only a part of the delivery is defective, a claim may not be made in respect of the entire shipment. Liability for consequential damage is excluded. Liability for defects is ruled out: a) if there is only a minor reduction in value or fitness for the purpose of the goods delivered, within the scope of differences that are customary in the trade, b) if changes have been made to the goods by third parties, c) if the goods have been subjected to excessive use or transported in an unsuitable manner, d) in cases of natural wear and tear, e) if the defects are based on design faults or the choice of unsuitable materials and the customer has expressly insisted – despite our notification to this effect – on the choice of design or material.

9.2. The customer’s obligation to pay is not affected by any notification of defects.

9.3. We will deal with justified complaints within the statutory or contractually agreed period by either repairing replacing or allowing the return of the contested parts at our discretion. We do not accept claims for damage compensation of any kind.

9.4. In product liability cases the customer’s claims may only be made against the manufacturer or our suppliers. The customer will be notified in justified and proven cases.

10. Retention of title

10.1. Goods

10.1.1. We retain title to the goods we have delivered until payment is made in full of all accounts receivable (including future accounts) arising from our business relationship with the customer, irrespective of their legal basis. We retain title even if we do business with the customer on a current account basis, in which case the retained title serves as security for the balance due.

10.1.2. We may refuse permission to resell and/or combine and/or mix goods supplied subject to retention of title.

10.1.3. In the event of processing, combination and/or mixing of goods supplied subject to retention of title with other goods that do not belong to us, we are entitled to a proportion of the new good or goods based on the invoice value of our goods in relation to that of the others, including cost of processing (combining/mixing). The processing shall be deemed as having been undertaken for us, so that the retention of title extends to the processed (combined, mixed) good or goods.

10.1.4. If the customer is a trader who resells goods to others in processed or unprocessed form, he may resell goods supplied subject to retention of title in the normal course of business. He herewith assigns to us, however, his claims arising from the sale equivalent to the invoice amount of the supplied goods subject to retention of title. His entitlement to resell goods will depend on the legal effectiveness of the assignment. The customer is not entitled to assign goods supplied subject to retention of title as a security to third parties, to pledge it or to undertake barter transactions with it.

10.1.5. If goods supplied subject to retention of title are sold by the customer after processing, either on their own or together with other goods that do not belong to us (processed or unprocessed), the claim arising from the sale to the invoice amount of the goods supplied subject to retention of title is assigned to us. This shall also apply if goods supplied subject to retention of title are used by the customer in performance of a contract for work or work and materials. Here too the claim arising from the contract for work or work and materials is assigned to us in advance in accordance with the invoice amount for the goods supplied subject to retention of title.

10.1.6. We are entitled to collect claims arising from goods being resold until such time as we rescind such claim, which we may do orally. The customer must notify the third-party debtor of the assignment to us upon request and must advise us of this notification without delay and send us the information and documents relating to collection of the assigned claims. The customer must notify us without delay of any pledge or other third-party impairment. Failure to do so may lead to ULO claiming damages.

10.1.7. Enforcing the retention of title, and especially reclaiming goods and collecting receivables from third parties, does not constitute withdrawal from the contract. We are, in particular, entitled to reclaim goods supplied subject to retention of title without needing to rescind the contract if the purchaser subject to retention of title has exceeded his payment deadline or is in default.

10.1.8. Our rights arising from simple, renewed and extended retention of title are not forfeited if the debtor pays by cheque. They will then continue to apply until we are absolved of our drawer’s or endorsement liability.

10.2. Miscellaneous

10.2.1. We reserve all rights of ownership and copyrights to drawings, illustrations and information in our catalogues, print and advertising media, assembly instructions, repair instructions, calculations and other documents and data. This also applies to written documents that are marked as “confidential”. Before passing them on to third parties, the customer must have ULO’s express permission to do so.

11. Force majeure and industrial action, defective or late delivery of prefabricated parts, auxiliary materials and

supplies, material disruption of transport and operations not caused by us along with anything that may have similar consequences for operations or unreasonably impede delivery, absolve us of responsibility for timely delivery or, at our discretion, release us from the supply obligation. They entitle us to limit the supply obligation to individual parts of orders undertaken and to extend delivery dates for the entire order or parts thereof. In these cases the buyer shall not be entitled to damage claim compensation or to cancel the contract.

12. Place of performance and jurisdiction

12.1. If nothing else is expressly agreed, ULO’s place of business shall be the place of performance. The place of performance for payments is Geislingen an der Steige.

12.2 If the customer is a merchant or a legal entity under public law, the place of jurisdiction shall be the court of law that is responsible for ULO’s place of business. ULO is, however, also entitled to sue the customer at his place of general jurisdiction. The same shall apply if the customer does not have a place of general jurisdiction in Germany, has transferred his domicile or place of ordinary residence to a country other than Germany following conclusion of the contract or his domicile or place of ordinary residence is unknown at the time when legal proceedings are instituted.

12.3. German law alone shall apply if nothing else is expressly agreed in writing. Application of the United Nations Convention on the International Sale of Goods (CISG) from 11 April 1980 is excluded.

13. Concluding remarks

Should one of the above terms and conditions be invalid or revoked by special agreement or binding statutory provisions, the remaining terms and conditions shall in no way be affected.

If no objection is raised to the new general terms and conditions within 14 days (the objection period) of notification or if orders continue to be placed after the new general terms and conditions come into force, the new general terms and conditions shall be deemed to have been agreed.

ULO’s general terms and conditions shall apply from 1 April 2013.