General Terms and Conditions (GTC)
1.1 These General Terms and Conditions of Parts Europe GmbH (hereinafter referred to as “the Seller”) shall apply to all business relationships between Parts Europe GmbH and entrepreneurs as per § 14.1 of the German Civil Code (BGB)* (hereinafter referred to as “Customer”). The product range of the Seller is aimed exclusively at entrepreneurs as resellers.
1.2 Before establishing a business relationship with the Customer the Seller will check if the Customer fulfills all requirements of the Parts Europe Dealer Standards and reserves the right to cancel the cooperation if the Customer no longer fulfills the requirements or if it becomes evident that the Customer made false statements on registration. Parts Europe Dealer Standards require that the Customer
— has a sales room to display goods
— has regular opening hours
— has a registered business
A termination of the business relationship for other than aforementioned reasons remains possible at any time.
1.3 Unless explicitly otherwise agreed in writing, the Customer’s General Terms and Conditions shall not apply. The Seller’s General Terms and Conditions shall further apply in any instances where the Seller unreservedly delivers to the Customer despite awareness of terms and conditions that conflict with or deviate from its own terms and conditions.
2. Conclusion of contract
2.1 The Seller’s product illustrations, quotations and pricelists, including those in its online shop, shall not be binding (so called “invitatio ad offerendum”). By placing an order the Customer shall make a binding offer to purchase a product. By clicking the „Finish order“ button in the Seller’s online shop the Customer shall make a binding offer to purchase.
2.2 The Seller may accept purchase offers within 30 days of receiving an order. Acceptance shall be confirmed by the Seller in writing by e-mail, post or fax. Acceptance may further occur by dispatching of the goods to the Customer (at the time of their delivery to the carrier). The confirmation of receipt sent automatically on completion of the online ordering process shall not constitute acceptance of the Customer’s offer and shall merely indicate successful transmission of the data to the Seller’s system.
2.3 Offers to purchase products that the Seller does not have in stock at the time the order is placed („back orders“) may be cancelled by the Customer only after 15 days have elapsed. Exempt from cancellation are products that were part of an order amount qualifying for a discount. If cancellation does not occur and the products are deliverable within 30 days of ordering, the goods shall either automatically be delivered or the Customer shall be asked whether he wishes to receive the goods or cancel the order, depending on his country of residence and the value of the back order. In each instance the applicable details shall be those stated in the prevailing “Conditions of Shipment and Back Order Deliveries“ published on the Seller’s website.
2.4 The price payable for products delivered as back orders shall be determined by the Seller’s pricelist at the date the Customer made the offer to purchase. Price changes occurring between the offer to purchase and the delivery of the goods shall be disregarded except under the conditions stated in Clause 3.6.
2.5 Any special conditions agreed by parties for a purchase contract shall not apply to other current contracts or to any future contracts with the Customer under any circumstances whatsoever.
2.6 In those countries where mandatory rules specify that the display of goods in a web shop constitutes a valid and binding offer to conclude a purchasing contract, the performance of the contract is subject to the availability of the product and the delivery of goods by the suppliers of the Seller.
3. Prices and Payment
3.1 The Seller’s prices shall be quoted net in euro. VAT shall be charged over the prices in accordance with the prevailing statutory provisions.
3.2 The costs of packaging, shipping, handling, insurance (including transport insurance, see Clause 5.6), duties and shipment shall be charged separately, unless expressly otherwise agreed in writing or unless an exception applies to the shipment costs under the prevailing „Conditions of Shipment and Back Order Deliveries“ published on the Seller’s website.
3.3 As a rule the full purchase price shall be payable in advance within 14 days of conclusion of the contract. A cash discount shall not be granted. Payment may be made by credit card on conclusion of the contract or by bank transfer. The Customer shall pay the transaction costs for the remittance. Due to technical reasons it is not possible to refund any overpayments made by credit card to the credit card account. Any such overpayment will be refunded by a credit note to the Customer’s Parts Europe Dealer Account.
3.4 Other payment methods shall be available only by way of exception and by prior written agreement between the parties. Revocation by the Seller remains possible at any times.
3.5 Any credit granted to a Customer and any terms of payment are subject to revocation by the Seller at any time. Furthermore the Seller has the right to ask at his own discretion for a sufficient security for any outstanding claim.
3.6 Payment shall be deemed received at such time as the amount due is credited to one of the Seller’s accounts. Non-payment shall entitle the Seller to charge late payment interest at a rate eight percentage points above the prevailing base rate. This shall not affect the Seller’s other legal rights in respect of non-payment by the Customer. Payments received for overdue invoices shall first be used to pay off any costs and interest and shall then be set off against the oldest debt.
3.7 The Seller may dissolve the contract with an appropriate period of notice if the Customer lacks the financial capacity to fulfil his obligations towards the Seller. This same shall apply if the Customer files for insolvency. The Customer shall promptly notify the Seller in writing of his impending insolvency.
3.8 The Seller shall have the right to pass on to the Customer any unforeseeable cost increases (due to circumstances such as exchange rate fluctuations, unexpected price increases by suppliers, etc.), but only for contractually agreed deliveries occurring at least four months after establishment of the contract.
4. Retention of title
4.1 The Seller shall retain the title to all the products until all the amounts payable are paid in full. Furthermore, the Seller shall retain the title until all the claims arising in connection with the business relationship with the Customer, are duly settled.
4.2 The Customer shall neither pledge nor provide as security any property that is subject to retention of title or legal rights. As a reseller the Customer may only make a resale in the normal course of business on condition that the Customer has assigned to the Seller his claims against his own Customers in connection with the resale and the Customer assigns ownership to his own Customer only after receipt of payment. By concluding the contract the Customer shall as a precaution assign to the Seller his claims in connection with such sales to his own Customers and the Seller shall duly accept such assignment. The Seller revocably authorises the Customer to collect receivables assigned to the Seller in his own name. He shall immediately transfer to the Seller all collected amounts assigned to the Seller insofar as due for settlement
4.3 If the goods delivered are processed, the Seller shall be deemed to be a manufacturer and shall acquire ownership of the newly created goods. If such processing is done in combination with other materials, the Seller acquires ownership of the property in ratio of the invoice values of the Seller’s goods to the invoice values of the other materials. If the goods are combined and inextricably mixed with other property of the Customer, and one of the other articles is to be regarded as the main item, the co-ownership of the article shall pass to the Seller in the ratio of the invoiced value of the Seller’s goods, or in lack thereof, the market value of the same. The Customer shall act as a depositary in such cases.
4.4 If third parties attempt to enforce rights on the goods subject to the right of retention or on the assigned claims, particularly through attachment, the Customer shall immediately notify such third parties of the Seller’s ownership, and shall also notify the Seller so as to enable him to enforce his property rights. If the third party is unable to reimburse the Seller the judicial or extra-judicial costs that may arise in this regard, the Customer shall be liable to the Seller for the same.
4.5 As soon as the realisable value of the Seller’s security interest exceeds the value of the secured claim for more than 10 %, the Seller shall, at the Customer’s request, release a corresponding part of the security interest.
5. Conditions of delivery and shipment; Transfer of risk
5.1 Stated delivery times/dates shall not be binding unless the Seller has explicitly confirmed in writing that they shall be binding. Deadlines shall be expressly agreed and documented in all instances. Automatically forwarded order confirmations are not deemed sufficient in this regard. Agreed deadlines shall be subject to the Seller’s suppliers and subcontractors rendering their services on time and as contracted. Where the shipment of goods has been agreed the stated delivery times/dates shall refer to the time of tendering to the shipper, carrier or other third parties responsible for transport.
5.2 The Seller shall only be bound to meet delivery deadlines provided the Customer fulfils the agreed payment terms and submits all the other documents that the Customer is bound to provide, particularly the necessary permits, approvals and plans, and also complies with other obligations within the required time. If these conditions are not satisfied in time, the delivery period shall be extended accordingly. This does not apply if the delay is caused by the Seller.
5.3 For handling reasons the Seller may refrain from delivering in a single shipment multiple articles purchased from different ranges or articles. The Seller shall further have the right to make partial deliveries – even if fixed dates apply – insofar as acceptable to the Customer. The Seller may render partial invoices for permissible partial deliveries. The Customer shall not have the right to reject partial deliveries unless unreasonable given the nature of the goods or their intended use.
5.4 Goods shall be delivered using the method of shipment chosen by the Seller, unless the Customer selected a specific method of shipment (carrier/shipment mode) during the ordering process. As a general rule the Seller will chose standard delivery service for parcels.
5.5 The risk of loss, destruction or deterioration of the goods shall transfer to the Customer at the time of their tendering to a suitable carrier or to a carrier chosen by the Customer or at the time they are placed ready for collection by the Customer. This condition shall also apply if the Seller bears the transport costs.
5.6 Transport insurance shall be concluded only at the specific written request of the Customer and at his expense.
5.7 The Seller shall not be liable for non-delivery or delayed delivery due to force majeure or other events that were unforeseeable at the time of establishment of the contract and that occur through no fault of the Seller (such as any disruption to operations, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of workers, energy or raw materials, difficulties in obtaining necessary regulatory approvals, government measures or non-delivery, incorrect deliveries or late deliveries by suppliers) and are beyond its control and whose effects on fulfilment of the contract could not have been prevented by reasonable efforts by the Seller. The Seller shall have the right to dissolve the contract if such events significantly impede the delivery or service or render it impossible and the difficulty is not merely of a temporary nature. Difficulties of a temporary nature shall postpone the dates by the duration of the difficulty, including if necessary a reasonable restart period. A contracting party shall immediately inform the other party of the cause of a problem in its domain and the duration of the postponement. Cost increases due to a problem shall entitle the Seller also to require payment of the additional expense, unless the Customer is not to blame for the problem and its cause is beyond his control. Insofar as it is unreasonable to require the Customer to accept the delayed delivery or service, the Customer may withdraw from the contract by immediately informing the Seller in writing. Any further legal rights of the Customer shall remain intact.
5.8 If delivery of a shipment to the Customer is delayed for reasons attributable to the Customer, the risk shall transfer at the time the Customer is notified of readiness for shipment. Any storage costs after the transfer of risk shall be payable by the Customer.
5.9 If delivery cannot be made because the Customer is not present at the specified delivery address even though the time of delivery was made known in good time, the costs of the unsuccessful delivery attempt and of any return transport of the goods/or renewed delivery attempts shall be payable by the Customer. The Seller may additionally require the Customer to pay lump sum compensation for damage. For each full week of delay the compensation shall equal 1% of the value of the total delivery or unaccepted part thereof, capped at a maximum of 8%. Parties shall be at liberty to prove the existence of higher or lower damage.
6. Delayed fulfilment
6.1 A delay in fulfilling the service shall entitle the Customer to cancel under statutory provisions only if the delay is due to the Seller.
6.2 In the event of delayed fulfilment by the Seller, the Customer shall at the Seller’s request state within a reasonable time whether he wants to cancel the contract or requires its fulfilment.
6.3 If the Seller is in breach (under § 286 of the German Civil Code (BGB)*), the Customer may claim, subject to demonstration of damage incurred due to delay, compensation of 0.5% for each full week of delay, capped at 8% of the price of the service taken.
6.4 If the Seller fails to fulfil the agreed service, the Customer may claim compensation instead of fulfilment, provided that he allowed the Seller without avail an appropriate period of time for fulfilment and that the Seller is responsible for the delay. The compensation shall be capped at an amount equal to 8% of the price of the service taken.
7. Warranty, defect in quality
7.1 If the Customer is a dealer as defined by § 1 of the German Commercial Code (HGB), he shall be subject to commercial obligations to inspect and complain about defects as per § 377 of the HGB. (Immediate examination of a delivery in regard to completeness and defects and notification of any complaints without undue delay, i.e. on the third working day after delivery at the latest!) If the Customer fails to fulfil the aforesaid notification requirements, the goods shall be deemed to have been approved, unless the defect is one that could not be detected during the inspection.
7.2 If the packaging exhibits discernible damage, the Customer shall acknowledge receipt only by adding a note to that effect. The damage shall preferably be evidenced by taking photographs. Damage caused in transit cannot give rise to any warranty claims. Transit damage shall be for the account of the Customer. The same shall apply to items lost in transit; see Clause 5.5.
7.3 In case of defects in the quality of the delivered goods, the Seller shall be bound and entitled, as per the Seller’s decision, to be taken within a reasonable time, to first repair or to replace the goods. If the Seller fails to do the above, in other words, where conducting such repair or replacement is impossible or unreasonable, or in case of refusal or unreasonable delay in the same, the Customer may cancel the contract or appropriately reduce the purchase price.
7.4 If the remedy consists of a replacement delivery, the Customer shall follow the procedure set out in the prevailing “Product Return and Warranty Policy” published on the website of the Seller to return to the Seller within 14 days the goods originally delivered. The return parcel shall contain a statement of the reason for return, the Customer’s name, an invoice copy and the return number issued for the return of the defective goods, enabling the Seller to identify them. For such time as and to the extent that it is impossible to identify the returned goods for reasons attributable to the Customer, the Seller shall not be bound to accept the returned items or credit the purchase price. The cost of any renewed shipment shall be payable by the Customer.
7.5 Insofar as it is impossible to pre-verify the existence of a defect by means of submitted photographs and detailed information given by the Customer, the procedure set out in the prevailing “Product Return and Warranty Policy” published on the website of the Seller shall be followed to return the article to the Seller for examination of the defect. If the examination reveals that the defect is not covered by the warranty, the Customer shall reimburse the shipment costs. Neither processing a return nor issuing a credit note by the Seller constitutes or implies an admission of any malfunction or other problem with the returned product or a legal duty to accept the return.
7.6 If a remedy in the form of replacement is not possible because that article is no longer available, the Seller shall offer the Customer an alternative article. If an alternative article is unacceptable, the Customer’s account at Parts Europe shall be credited with an amount equal to the purchase price.
7.7 A material deficiency in some of the deliverables shall not constitute a right to reject the entire shipment. The only exception shall be where the partial delivery is of no interest to the Customer. The Customer may withhold payments only to an extent proportionate to the defect.
7.8 If payment has not been received for goods, the Seller shall accept liability only if responsible for wilful intent or gross negligence.
7.9 Normal wear and tear (for example tears in clothing/gear after falls during a MX race) and damage arising after the transfer of risk due to incorrect or negligent treatment, excessive stress or use of unsuitable equipment and also irreproducible faults shall be excluded from claims under the warranty. If the Customer or third parties perform improper modifications or maintenance, or if damage occurs through exceptional external influences unforeseen in the contract, or if the goods are used or treated improperly, these acts and their consequences shall be excluded from claims under the warranty, unless the Customer proves that the reported problem is not due to such changes, repairs or treatment.
7.10 Electronic articles are exempt from any warranty. For batteries, helmets, electrical parts, racing equipment parts and hazardous materials only limited warranty possibilities apply.
7.11 The term of limitation for warranty claims shall be one year from the time of transfer of the risk. A remedy (replacement or repair) may influence only the term of limitation of the problem that occasioned the remedy.
7.12 The Seller’s descriptions of products and other characteristics shall not constitute a guarantee of their condition or durability within the meaning of § 443 of the German Civil Code (BGB)*. The parties recognise that a guarantee within the meaning of § 443 of the German Civil Code (BGB)* shall exist only if the Seller uses the term „guarantee“ in writing in accordance with the procedural requirements of § 477 of the German Civil Code (BGB)*.
7.13 Used goods occasionally supplied to the Customer by agreement shall be excluded from any warranty claims.
7.14 Minor defects and defects in sold used goods shall not establish any warranty rights and shall not entitle the Customer to refuse to accept the deliverables.
7.15 The Customer may not assign any warranty rights.
7.16 The Customer shall the return the defective deliverables to the Seller’s Customer Service department.
8. Standard Returns
8.1 The return of deliverables for reasons other than those mentioned in Clause 7 shall be possible only within 45 days of the Customer’s receipt of the goods. The deliverables must still be in their original packaging complete with the product descriptions, product labels and Parts Europe barcodes.
8.2 It shall not be possible to return items provided with additional stickers, product labels and/or barcodes of the Customer or written on or marked in any other way by the Customer.
8.3 Items withdrawn from the product range of the seller and items that were part of an order amount qualifying for a discount may not be returned.
8.4 In general the Customer shall owe a restocking fee equal to 15% of the value of returned goods, but at least € 15 per return order (for example in the case of return of several smaller, less valuable parts). The value of the goods minus this amount shall be credited to the Customer’s Parts Europe account for future purchases.
8.5 The Seller reserves the right to charge a higher restocking fee if the original packaging is damaged. The value of the goods shall not be credited if the original packaging is damaged to an extent that precludes sale of the goods. In such a situation the Customer may require reshipment of the goods. The costs of such parcels shall be payable by the Customer.
8.6 Clauses 8.3 and 8.4 shall not apply if the return is due to an incorrect delivery by the Seller.
9.1 Without prejudice to the above provisions concerning liability for delayed performance, the material defect warranty or the provisions made below, the Seller shall have no liability to provide damage compensation under any legal grounds whatsoever.
9.2 The Seller shall bear statutory liability if it has guaranteed the condition of the goods.
9.3 The Seller shall bear statutory liability in the case of damage caused through willful intent or gross negligence. This shall also apply in the case of negligent damage if a contractual obligation (’cardinal duty’) has been breached. The statutory provisions shall further apply to liability for damage compensation instead of fulfillment in the case of a substantial breach of duty. In all of the above cases – except willful intent – the liability shall be limited to the scale of the foreseeable damage that typically occurs. Indirect loss and consequential damage due to defects in the deliverable shall qualify for compensation only if such damage is likely to occur during use of the deliverable for its intended purpose.
9.4 The statutory liability for loss of life, bodily injury or harm to health shall be unaffected. The same shall apply to liability claims by the Customer under the Product Liability Act.
9.5 Limitations of liability under the foregoing provisions shall also apply to the personal liability of workers, employees, representatives and agents of the Seller.
9.6 Where claims are brought against the Seller under tort law, the statutory limitation term shall be unaffected. However, the Customer shall be under obligation to bring any claims for compensation from the Seller within one year of becoming aware of all the conditions of the claim.
9.7 Some of the products distributed by the Seller, such as camshafts, carburetors cylinder-increasing piston kits, exhaust pipes and other engine-tuning parts are solely designed to enhance the performance of vehicles used exclusively for competition purposes. These parts may affect the specifications of the vehicle in regard to its suitability for the use on public roads and may result in loss of approval by authorities for that use. The Seller may not be held liable at any time or in any way for any resulting infringement of legal obligations or the loss of approval.
10. Right of Set-Off and Right of Retention
10.1 The Customer may only set off his counter claims or withhold payments on the grounds of such claims provided the claims are uncontested or legally binding. The Customer may exercise retention rights only in respect of claims under the same contract.
10.2 In case of quality deficiencies, only that part of the payments may be retained that is proportionate to the defect and only if there is no doubt concerning the defect.
11. Foreign transactions
11.1 If in respect of foreign transactions, the contract includes international trade terms, only the latest version of the „International Commercial Terms” („Incoterms”) published by the International Chamber of Commerce, shall apply. Where applicable the contents of the relevant part of the Incoterm clause shall form an integral part of the contract. If the Seller fails to specify otherwise in written form, „Ex Works” rules shall apply.
11.2 The prices quoted do not include consular fees, import duties or other taxes and fees imposed under the rules of the country of destination. These shall be payable by the Customer, unless expressly agreed otherwise. If contractually agreed by way of exception, the Seller shall than have the right to adjust prices and constituent charges in proportion to their development since conclusion of the agreement.
11.3 The Seller shall be bound to comply with foreign packaging, weighing and customs regulations only if the Customer provides precise details of the same in advance. Does the Customer provide inaccurate details or none or not in due time, the Customer is solely liable for all resulting consequences such as additional costs, penalties etc. If the seller fails to comply with precise and accurate details given in advance, he is liable in accordance with clause 9 of this General Terms and Conditions.
12. Data Protection
13. Trademarks, copyrights, limited use licence
13.1 The Seller holds a limited use license for many branded products that it markets under its own brand names and trademarks (hereinafter collectively referred to as „Trademarks”). The Seller further holds copyrights to all images in its catalogues and other advertising („Copyrighted images”). To monitor use of the Trademarks and copyrights, the Seller has laid down the following rules for its dealer network:
Authorised dealers may use the following trademarks „DRAG SPECIALTIES®“, „SLIPPERY®“, „THOR®“, „THORMX®“, „MOOSE®“, „MOOSE RACING®“, „MOOSE UTILITY DIVISION®“, „MOOSE ATV HUNTING PRODUCTS“, „PYTHON®“, „ICON®“, „TRUKKE®“, „WINGLEADER®“, „Z1R®“, „ARCTIVA®“, „AMS® Tires“ or any similar or derived marks, or any copyright-protected representation, in conjunction with promotional materials, publications, catalogues, websites and other printed materials, audio, video or electronic media, provided that they meet the following requirements:
Parts Europe grants its registered dealers a revocable, non-exclusive, non-transferable and limited licence right to use the trademarks and copyrighted images provided that the dealer sells the relevant products and complies with the applicable conditions. This limited licence does not vest in the dealer any legal right to register the trademark or to use it in domain names or as part of his dealer name. Any use of trademarks and copyrighted images shall be accompanied, at the place where used, by an indication that identifies Parts Europe as the licensor of the trademarks and copyrighted images. The dealer shall not claim any ownership or other rights or interests in the trademarks and/or copyrighted images. Except for the above limited and revocable right of use, the dealer cannot derive from this agreement any other rights to or interests in the trademarks and copyrighted images.
13.2 Any unauthorized application of a trademark or any copyright-protected image on a product (for example for advertisement purposes on clothing) is not allowed.
13.3 In the event of infringement, the Seller shall enforce its rights to require discontinuation and where applicable compensation. The exercise of the Seller’s rights may cause significant costs for the infringer.
14. Information services and Dealer Locator
14.1 The Seller reserves the right to inform registered Customers on a regular basis by general information on product news and special offers forwarded by e-mail („newsletter“). If a Customer does not want to use this service he may cancel it any time by sending an according message to firstname.lastname@example.org or by calling Customer service.
14.2 The Seller offers on his website as a service for his Customers a tool for end consumers to find the closest shop selling Parts Europe products in their region by entering their postal code (so called Dealer Locator). The Customer upon his registration as a Parts Europe dealer gives his consent that his business address and business hours will be shown in the Dealer Locator. The consent may be withdrawn any time.
15. Final Provisions
15.1 The jurisdiction in respect of any disputes arising from the business relationship between the Seller and the Customer shall be Trier (Germany), or the court having jurisdiction over the judicial district in which the Registered Office of the Customer is located, at the discretion of the Seller. The courts of Trier (Germany) shall have exclusive jurisdiction in respect to complaints against the Seller. This provision shall not affect the provisions of mandatory law on exclusive jurisdiction.
15.2 The relationship between the Seller and the Customer shall be exclusively subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11th April 1980 (CISG) shall not apply.
15.3 If any provisions of the contract or these General Terms and Conditions are or become invalid or contain lacunae, these provisions or lacunae shall be deemed to have been replaced by legally effective provisions that the contracting parties would have agreed on in order to achieve the economic objectives of the contract and the purpose of these General Terms and Conditions, if they had known about the invalidity or such lacunae. The validity of the contract or the General Terms and Conditions in general shall not be affected by such invalidity of singular provisions or such lacunae.
15.4 In cases of questions of understanding and interpretation of these terms and conditions the German version is solely decisive.