The following Terms of business are exclusively relevant for all contracts of sale, assembling, repair and maintenance with OETTINGER Sportsystems GmbH. This is also the case if the Terms of the customer wholly or partly conflict with them. Each deviation must be made in writing in order to be valid.
Consumers as defined in the following terms are natural persons with whom we have entered in business and who are not engaged in a trade or independent activities.
Entrepreneurs as defined in the following terms are natural or legal persons or partnerships having legal capacity with whom we have entered in business, they are independent traders, businessmen or professional persons.
Customers as defined in the following terms are wether consumers or entrepreneurs.
Quotations and offers of OETTINGER Sportsystems GmbH are given entirely without engagement. The client is bound to his order during four weeks in case of automotive tuning and two weeks in all other cases. Orders will be legally binding when confirmed in writing by ourselves.
Price are "ex works" and "net" exclusive of packing and shipping costs and legal VAT. The prices which are valid on the day of the conclusion of contract are authoritative. In case that more than four months have elapsed between the conclusion of a contract and the delivery date and OETTINGER Sportsystems GmbH not being in default, the list price which is authorative is the one valid on the day of delivery.
For OETTINGER Sportsystems GmbH only written and explicitely designated as binding estimates of cost are really binding.
Unless otherwise agreed OETTINGER Sportsystems GmbH delivers ex works. Delivery times count from the date on which the order acknowledgement has been dispatched, or, earliest, from the time the final execution has been clarified with and confirmed in writing by the entrepreneur. The note of dispatch or collection readiness is authoritative for the observance of the delivery date or time for delivery.
Delivery dates and times are only binding if they are confirmed in writing. Part delivery is permissible only in case that it is objectively interesting for the client and not unacceptable for him for any other reason. If not otherwise explicitely agreed in writing, delivery dates and times can be slightly exceeded - at most 3 weeks - without constituting a debtor's default provided there was no fraud, intention and gross negligence, unless this exceeding cannot be expected of the client after his interests have reasonably been assessed by OETTINGER Sportsystems GmbH. In case OETTINGER Sportsystems GmbH cannot comply with the completion date because of acts of God, riots, strikes, lockouts or important operational breakdowns not caused by someone's negligence, especially default of specialists or deliveries, they will not be liable for damages resulting from these delays, especially they will not be obliged to supply a substitute car or reimburse costs for the actual use of a rented vehicle. Nevertheless, OETTINGER Sportsystems GmbH is obliged to inform the client about delays as far as this is possible and can reasonably be expected by him.
In case delivery is taken on the plant's site of OETTINGER Sportsystems GmbH the entrepreneur will be in default if he does not pick up the vehicle or parts against payment of the invoice within 8 days after information of completion and issuing the provisional or final invoice. In case a vehicle will not have been picked up after the expiry of the aforementioned time limit OETTINGER Sportsystems GmbH reserves the right to charge stallage to the amount of storage fees for garaged vehicles on a day-to-day basis in accordance with local custom. OETTINGER Sportsystems GmbH will charge default interest of 5 % above the key ECB interest rate for nonmerchants and 8 % above the key ECB interest rate for merchants. In case that the entrepreneur is in arrears - after notice of making available - with taking delivery of the subject matter of contract or with his financial commitment for more than 8 days OETTINGER Sportsystems GmbH is entitled after setting an additional period of time of 8 more days to withdraw from contract or to claim damages for non-performance unless the customer can establish a sufficient reason for not taking delivery in time. The amount of damages is at least 15 % of the stipulated price unless the customer can prove that the loss was not that high. On the other hand, OETTINGER Sportsystems GmbH reserves to assert a higher loss.
For entrepreneurs the risk of accidental loss, destruction or deterioration of the service provided by OETTINGER Sportsystems GmbH passes to the customer after the goods sold are transferred, in case of sales by delivery to a place other than the place of performance after they are handed over to the forwarder or any other person or firm designated to carry out the consignment.
For consumers the aforementioned risk passes to the customer also in case of sales by delivery to a place other than the place of performance only after the goods are transferred to him.
There is also a passing of risk in case that the purchaser is in default of acceptance.
1. Towards entrepreneurs
Towards entrepreneurs, OETTINGER Sportsystems GmbH gives a warranty of 24 months from delivery on for all services.
The warranty will be made towards entrepreneurs according to OETTINGER Sportsystems GmbH in their shop either by free replacement or free rectification of parts' defects or jobs which have been recognized as defective by OETTINGER Sportsystems GmbH. In case of the removal of defects the parts installed in a vehicle will be covered by warranty until the end of the warranty period of the original subject matter of contract.
Entrepreneurs shall notice in writing obvious defects to OETTINGER Sportsystems GmbH or to a firm authorized by OETTINGER Sportsystems GmbH or have it recorded by this firm within a period of two weeks from receipt of service. In case of overstepping the time limit the claim of warranty will expire. After ascertainment of a defect OETTINGER Sportsystems GmbH shall immediately have the opportunity of repair. It is incumbent on the entrepreneur to prove that the default was already there before passing of risk and that it has been assessed and notified in due time.
Justified claims for warranty will be reworked by OETTINGER Sportsystems GmbH at their opinion: the faulty goods will be repaired or replaced, free of charge.
In case of a slightly negligent failure to comply with the duty by OETTINGER Sportsystems GmbH which does not consist in a material defect or a minor defect without impairment of work, no rescission or compensation delivery will be accepted, provided there was no fraudulent intention.
In case that the entrepreneur sets a time limit for removal of defects, which has to exceed 20 days, he shall declare after the expiration of this time and within two more weeks whether he wants to withdraw from the contract or still demands the completion of the contract. If such a punctual declaration is overdue, his claim for performance will expire. Nevertheless, there will be no longer a claim for damages because of material defect in case of withdrawal.
In case that the entrepreneur chooses compensation after the last fulfillment has failed, the goods will remain at the entrepreneur's, unless this cannot be reasonably expected of him. The compensation confines itself onto the difference between purchase price and value of the defective goods, unless OETTINGER Sportsystems GmbH has fraudulently violated the contract.
OETTINGER Sportsystems GmbH will not accept claims for damages, unless intent or gross negligence of OETTINGER Sportsystems GmbH has been proved or the damage is a personal injury or is caused by a violation of a primary duty of the contract. In case that a contractual collateral duty has not been violated deliberately or with gross negligence, compensation can be claimed instead of performance only if the damage of the purchaser is higher than 10 % of the price of the performance.
The removal of defects can be rejected if the entrepreneur does not fulfill his own essential convenants with respect of which advance performance devolves on him or if he is unable to pay after the defect has been removed. The latter will be refutably supposed in case of delay of payment of more than 5.000 EUR regarding the same or another business between the contracting parties, regardless of at least two reminders with fixing of a period of time.
Guarantees going beyond the legal warranty are only valid in written form. This is also the case for warranted characteristics.
Towards entrepreneurs OETTINGER Sportsystems GmbH shall have two chances to remove defects. In case of failure the entrepreneur is entitled to claim the rescission of sale or the reduction of the purchase price. The entrepreneur will have no claim to delivery of substitute goods. OETTINGER Sportsystems GmbH reserves the right to transfer the vehicle to its own shop to repair it.
Natural wear is excluded from warranty.
OETTINGER Sportsystems GmbH agrees with entrepreneurs as customers that the applicable properties of goods are fundamentally only those of the product description of OETTINGER Sportsystems GmbH or the respective manufacturer. Public statements, offering for sale and advertisement of the respective manufacturers do not represent a properties' description in accordance with the terms of the contract.
2. Towards consumers
Consumers as customers shall notice in writing obvious defects to OETTINGER Sportsystems GmbH within a period of two months after the day on which the state not being in conformity with the contract has been ascertained. The receipt of notice is authorative for the observance of set period. If such a punctual notice is overdue, his claim for warranty and subsequent performance will expire two months after the ascertainment of the defect by the consumer, unless OETTINGER Sportsystems GmbH would have acted fraudulently.
The onus of proof for the time the defect was established lies with the consumer. In case that false indications made by producers has caused him to terminate the contract the onus of proof for this ground will also lie with him. For used goods the onus of proof for the defectiveness of the good lies with him.
In case of new goods a warranty period of two years from good's delivery on is applicable for consumers, provided the defects have been notified in due time. In case of used goods the warranty period is one year after delivery.
Consumers have only a claim for compensation delivery in case of goods not exceeding a value of 100 €. In case of goods which value goes beyond this limit OETTINGER Sportsystems GmbH shall be entitled to one (1) subsequent performance attempt within a reasonable time (max. 20 working days). If such a subsequent performance cannot be reasonably expected of OETTINGER Sportsystems GmbH from an economical point of view this shall take place in form of a compensation delivery.
If the subsequent performance fails consumers have a claim either for reduction (lowering of purchase price) or rescission (withdrawal) of contract. Nevertheless, they shall not be entitled to terminate the contract in case of a minor breach, especially minor defects without dysfunction.
In case that the consumer sets a time limit, which has to exceed two weeks, he shall declare after the expiration of this time and within two more weeks if he wants to withdraw from the contract or still demands performance of the contract. If such a punctual declaration is overdue, his claim for performance will expire. Nevertheless, there will no longer be a claim for damages because of material defect in case of withdrawal.
In case that a defect which is covered by warranty could be cured by a third plant that is outside of the workshop of OETTINGER Sportsystems GmbH and in case that this is the wish of the client, OETTINGER Sportsystems GmbH shall be asked for permission before. The client shall then pay the third plant in advance, provided nothing else has been agreed before - and apply at OETTINGER Sportsystems GmbH's for warranty in writing, producing all invoices of maintenance works carried out in the meantime and defective parts.
The goods are sent "collect on delivery" or "cash before delivery". In case goods are sent against invoice according to a special agreement the amount of invoice shall be due immediately after receipt and without discount. The goods are due to payment without discount in cash, per bank check or certified cheque on delivery of the purchased good or within 8 days after notification of completion at the latest. In case of delay in payment OETTINGER Sportsystems GmbH is entitled to charge default interest of 8 % above the key ECB interest rate for merchants and 5 % above the key ECB interest rate for nonmerchants.
The contracting parties shall only offset against uncontested claims or claims recognized by declaratory judgment of a court.
OETTINGER Sportsystems GmbH will retain title to the goods until payment in full of contract claims and all collateral claims (especially costs, interests) of OETTINGER Sportsystems GmbH, unless they have become integral part of other goods. In case the purchaser is entrepreneur OETTINGER Sportsystems GmbH will retain title to the goods until payment in full of all claims of OETTINGER Sportsystems GmbH against the purchaser which are still unsettled until conclusion of the contract. As long as the retention of title is valid, each modification to our disadvantage, that is sale, mortgaging, chattel mortgage or other abandonment of the purchase object to a third party without written approval of OETTINGER Sportsystems GmbH is inadmissible. During the retention of title the purchase shall hold the delivered goods carefully in safe custody and in a perfect condition. Further, he shall insure them sufficiently and transfer the rights from the insurance contract to us. In case that the purchaser fails to honour this obligation OETTINGER Sportsystems GmbH shall be entitled to take out the insurance policy at the purchaser's expense and charge him with these costs.
In case of delay of payment or infringement of the obligation to preserve and insure the good with the retained title OETTINGER Sportsystems GmbH shall be entitled to withdraw from contract and demand the return of the good from the customer and to exploit it under setting off the proceeds of sales against the price as agreed per contract after written notice at the highest possible price by private sale within a reasonable period of time. The customer shall fulfil the claim for return of OETTINGER Sportsystems GmbH without undue delay, unless a right of retention resulting from contract would be due to him. On request of the customer an expert can be called in at his costs to have established the value of the returned subject matter of contract. OETTINGER Sportsystems GmbH is obliged to set off this established value against the price of the settled good.
The client shall bear all costs of taking back or utilization of goods. The utilization costs will run to 10 % of proceeds of utilization without proof, including VAT. In case that higher or lower costs are proved these shall be valid. These costs shall also be deducted from the proceeds of sales of the subject matter of contract.
In case that delivered goods are damaged or distrained before being completely paid we shall be informed immediately in writing. In case of access by a third party, especially in case of distraint, the client shall inform us immediately in writing and point out our title of retention to the third party. Just so, he shall also let us know immediately each change of address of client or of location of goods. All costs resulting from the assertation of property shall have to be borne by the client.
Having been entrusted with the mandate OETTINGER Sportsystems GmbH have a right of retention or distraint of the good which has passed into their possession because of all business relations claims, provided these claims are naturally and economically connected with the claim for return of the client. OETTINGER Sportsystems GmbH has a right of private sale of the seized property. As threat of sale of the pledge it shall be sufficient to dispatch a written notification to the last known address of the client.
In case of slightly negligent failure to comply with duties the liability of OETTINGER Sportsystems GmbH shall be, depending on the type of goods or other services, limited to foreseeable, direct average damages (according to contract type). This shall also be so in case of slightly negligent failure to comply with duties of legal representatives or vicarious agents.
OETTINGER Sportsystems GmbH shall not be liable towards entrepreneurs in case of slightly negligent and not fraudulent failure to comply with duties.
Aforementioned limitations on liability do not concern product liability claims of clients and claims because of personal injuries which have to be attributed to OETTINGER Sportsystems GmbH.
Damage claims of clients for defects are time-barred after one (1) year starting from the delivery of goods, provided that OETTINGER Sportsystems GmbH cannot be accused of having caused a damage intentionally or by gross negligence or with fraudulent intent, and there is no personal injury.
German law is applicable. The application of the UN Sales Convention shall be excluded.
It is agreed that the competent court of jurisdiction for all present and future claims including for bills of exchange or for cheques resulting from business with merchants, legal persons or special funds under public law shall be that of Bad Homburg / Germany (61352 Bad Homburg).
The provisions for automotive repair in a then valid version which are recommended by the central federation of automotive craft in Bonn (Zentralverband des Kfz-Handwerks) are applicable to maintenance and repair works of V.A.G. series-produced vehicles (see notice board)
In doubt the German text of these Terms shall have priority.