GENERAL TERMS AND CONDITIONS
§ 1 Scopes
These general terms and conditions constitute the exclusive basis for all established legal relationships between the company Schmid Motorsport GmbH (limited company), Leonhard-Kluftinger-Straße 6, 87674 Kaufbeuren, registered in the commercial registry of the district court Kempten under HRB 8046, represented by the company, and their customers. For legal transactions with customers which are established through our online shop www.o-brake.com, we refer to our additional terms and conditions for online transactions at this point, which can be viewed at our website www.o-brake.com anytime and which are enclosed with the confirmation of order receipt.
Concerning legal relationships between suppliers and Schmid Motorsport GmbH, we refer to our conditions of purchase at this point. We can only acknowledge contrary conditions or conditions deviating from the sales conditions by the purchaser if we have agreed to their application explicitly and in writing. The general terms and conditions version valid at the time of conclusion of contract shall apply. These are available as storable and printable version for free at www.schmid-motorsport.de.
§ 2 Conclusion of Contract
Our offers are nonobligatory. Technical changes as well as changes in shape, color, and/or weight shall remain reserved within reason.
The order submitted by the purchaser is a binding offer. We are entitled to accept the contract offer contained in the order no later than within two weeks after receipt by us. The offer can also be accepted by delivery of the purchased item. An order comprises the authorization to conduct test drives.
Orders from the areas engine technology, undercarriage and exhaust technology are dependent on your vehicle-specific data. We reserve the right to make all necessary changes (explicitly also concerning price) until the vehicle-specific check.
§ 3 Ordering in the Internet Shop
Please find all details in our additional terms and conditions for online transactions, which can be viewed at our website www.o-brake.com anytime and which are enclosed with the confirmation of order receipt.
§ 4 Acceptance
The purchaser is obligated to accept the delivery item. Acceptance generally takes place – unless otherwise agreed – at our Kaufbeuren office. The purchaser comes in default of acceptance if he does not collect the purchased item against payment of invoice within 8 days after notification of completion and issuance of preliminary or final invoice. If a vehicle is not collected after expiration of the deadline, we can charge the locally customary storage fees for the per diem storage of vehicles as demurrage.
§ 5 TÜV (German MOT) Inspection
A purchaser’s claim to TÜV registration in the vehicle title generally only exists with the TÜV that compiled the sample report.
§ 6 Complaints
We commit ourselves to careful execution from flawless material. If and when an entrepreneur places an order, he must inspect the contract object on receipt and make possible complaints immediately. Later complaints are excluded, unless the purchaser provides evidence of unforeseeable work-, material-, or construction faults that were not ascertainable at acceptance of the purchased item within 14 days after delivery. All complaints must be in writing and must indicate the faults precisely. Upon receipt of an already externally damaged delivery, this must be announced in writing immediately upon delivery by the shipping company.
§ 7 Spare Parts
If not otherwise agreed when placing the order, replaced parts shall pass into our ownership.
§ 8 Retention of Title
The purchased item remains our property until all claims, including all costs, have been settled in full. As long as our retention of title persists, any modification to our disadvantage, disposition, pledge, chattel mortgage, or other cession of the purchased item to third parties is not permitted without our written consent. The purchaser is obligated to handle the items lent to him with care, store them carefully and keep them in sound condition for the duration of retention of title. In the event of destruction, damage and seizure of the delivered items, the purchaser must notify us immediately, and in case of seizure, the executory officer must also be made aware of the retention of title immediately. All expenses arising from the enforcement of our retention of title shall be borne by the purchaser.
Furthermore, resale is not permitted if the purchaser fails to comply with his contractual obligations with us as supplier. The purchaser hereby already assigns the claims against third parties arising from the resale to us as security.
If the delivery items are processed with other items which are not our property, Schmid Motorsport GmbH acquires co-ownership of the new item in proportion of the value of the delivery items to the other processed items at the time of processing. If the delivery items are irreversibly incorporated with other items which are not our property, we acquire co-ownership of the new item in proportion of the value of the delivery items to the other incorporated items. The purchaser safeguards the co-ownership for us.
§ 9 Shipment and Passing of Risk
Shipment always takes place at the customer’s expense. The choice of shipping method is made at our best discretion. For orders in the internet shop, respective freight and packaging costs incur. This regulation exclusively applies to sales to final consumers. For internet orders to resellers, the respective individual arrangements shall apply. If the purchased item is sent to the purchaser at his request, the risk of accidental destruction or accidental impairment of the purchased item shall be transferred to the purchaser upon dispatch to the purchaser, at the latest upon the purchased item leaving. This shall apply irrespectively of whether the purchased item is dispatched from the place of performance or of who bears the freight charges. In case of subsequent change of address at the delivery service, additional costs will arise, which shall be borne by the purchaser.
§ 10 Delivery
If and insofar as no delivery times are stipulated, we deliver the purchased item ordered at the earliest possible date. Operational or traffic disruptions, strikes, shortage of raw materials or other circumstances which are beyond our control release us from meeting delivery dates in any case and do not give the purchaser the right to claim damages or to withdraw from the contract. We are entitled to make partial deliveries, unless partial fulfillment of the contract is of no interest for the customer.
§ 11. Warranty / Liability
For a contract with a consumer (§13 German Civil Code), the legal regulations apply. Other than that, we shall assume liability for defects to the delivery items in the following way:
Within 6 months after transfer of risk, the purchaser is initially entitled to claim subsequent performance (rectification or replacement delivery). When choosing a warranty law option, the purchaser must respect the principle of proportionality. In case of rectification, we shall be obligated to reimburse all expenses necessary for the purpose of remedial action, insofar as the costs do not increase by the purchased item being taken to a place other than the place of fulfillment. Expenses are in particular transport-, road-, labor- and material costs. Should subsequent performance be unsuccessful or disproportionate, the purchaser can withdraw from the contract or reduce the purchase price. He can only exercise the right of withdrawal or price reduction provided that he initially asked us for rectification, setting a reasonable deadline, unsuccessfully.
Our liability, that of a legal representative or of an agent is limited to the cases of intent or gross negligence. For a violation of essential contractual obligations, we are principally liable according to legal provisions. Claim for damages, however, is limited to the foreseeable damage typical for this type of contract. Liability for damages by the contractual object to other legal assets of the purchaser is excluded, insofar as the damages have not been caused by intent or gross negligence. This regulation also includes claims for damages besides performance and compensation instead of performance, regardless of the legal grounds, in particular based on defects, violation of duties arising from the contractual obligation or from unauthorized use. It shall also apply to claims to compensation of futile expenses.
Natural wear and tear shall be excluded from the warranty in any case. The same applies to minor deviations from the agreed quality or damages which occur after transfer of risk due to incorrect or negligent handling or particular external influences which were not presupposed in the contract. In case of a defect which is based on incorrect assembly, we are only obligated to warranty if the assembly or installation of the object sold was carried out competently. The competent performance must be set out and proved by the purchaser.
Damages which occur through insufficient or incorrect information on the purchaser’s operating conditions, through improper handling or mounting of the contractual item, through excessive load or through the buyer or a third party instructed by him having undertaken changes or repairs to the contractual item without our approval are excluded from the warranty.
Illustrations and descriptions shall only be considered as general information and may differ in color, shape and design; technical data can be subject to changes, since we always make an effort to advance our products. Specifications in the descriptions, about performances, speeds, etc., are not binding data but are to be regarded as approximate.
We expressly note that motorsport parts are short-lived high-performance products which are in some cases not approved for public road traffic. We cannot assume any warranty or liability for these particular motorsport parts.
All components have been developed, among other purposes, also for use in motorsport. Concerning use in public road traffic, the buyer / user / consumer must find out about admissibility in public road traffic himself. Due to the fact that motorsport is dangerous and that the use of brake components, among other things, takes place in extreme driving situations and on closed racing circuits, the company assumes no warranty or guarantee regarding technical performance, usage or design of the brake components. The company solely warrants that the components have been produced in accordance with the valid manufacturing provisions. Without limiting the foregoing, the company particularly assumes no liability for injury or death in connection with the use of the brake components. The risk remains with the buyer / user / consumer to the fullest extent. Apart from the statement that the manufacturing provisions for brake components are complied with, the company assumes no warranty or liability of any kind, neither explicitly nor implicitly, regarding their merchantability or specific usability.
Damages which have occurred due to improper handling, mounting or excessive load of the purchased item or through non-compliance with the regulations on handling, maintenance and care of the purchased item (e.g. operating instructions, service booklet etc.) are excluded from the warranty. Furthermore, we expressly note that damages which have occurred due to wear because of higher than average mileages (> 15,000 km/year) are excluded from the warranty.
Statements by us in connection with the contract (performance specification, reference to DIN) do, in case of doubt, not include an assumption of a guarantee. In case of doubt, the assumption of a guarantee requires our express written declaration.
§ 12 Prices
The prices which are in effect on the day the order is placed are binding. The statutory value-added tax in effect on the day the invoice is issued must be added to these prices. The price quotations in the internet shop are only directed at the reseller.
If the time period between conclusion of contract and agreed delivery date is more than four months, we are entitled to adjust the price, in the event that wages, material costs, commodity prices, land- or sea freights, taxes, customs duties or market cost prices have risen until completion of delivery.
§ 13 Conditions of Acceptance
The purchaser is obliged to accept the goods. If the purchaser finds himself in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for damage occurring to this extent including possible additional expenses. Further claims shall remain reserved. Should the above conditions exist, the risk of accidental destruction or accidental impairment of the purchased item shall be transferred to the purchaser at that time at which he falls into default of acceptance or debtor’s default.
§ 14 Insurance
An insurance policy is taken out only at the purchaser’s express request and at his expense.
§ 15 Place of Performance and Jurisdiction
Place of performance is Kaufbeuren, unless expressly agreed otherwise.
For all disputes arising out of the contractual relationship, if the purchaser is a qualified merchant, legal action shall be brought before the local court Kaufbeuren or the regional court Kempten, respectively. We are also entitled to take legal action at the purchaser’s official place of business.
German law shall exclusively be applicable, excluding the laws on the international purchase of movable objects, even if the customer has his company headquarters in a foreign country.
§ 16 Miscellaneous
The legal invalidity of individual provisions shall not affect the validity of the contract or the other provisions.
§ 17 Terms of Payment
For all claims (also from previous legal transactions), we are entitled to a right of retention and lieu concerning the item which has come into our possession as a result of the contract. We are entitled to realize the pledge by way of private sale. For the threat of sale of pledge, a written notification to the purchaser’s last address is sufficient.
When a contract is concluded, we can only accept advance payment without deduction of discount or cash on delivery.
§ 18 Data Protection
The personal data voluntarily provided by the customer in connection with his order are used exclusively in compliance with the provisions of the Federal Data Protection Act (BDSG) and the German Telemedia Act (TMG).
The contents of the data protection information within the meaning of § 19 are available for the customer on www.schmid-motorsport.de any time.
§ 19 Right of Cancellation / Return Instruction
You have the right to cancel your contractual declaration/this contract without giving reasons within fourteen days. The cancellation period begins 14 days from the day on which you or a third person nominated by you, who is not the carrier, have/has taken the last products in possession. In order to exercise your cancellation right, you must inform us, Schmid Motorsport GmbH, Leonhard-Kluftinger-Straße 6, 87600 Kaufbeuren, Tel. +49(8341)995770, email@example.com, by means of an unambiguous statement (e.g. a letter sent by post or an e-mail), of your decision to cancel this contract. To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the cancellation right before the cancellation period has expired.
Cancellation form template If you want to cancel the contract, please fill in this form and send it back.
(Name, address, telefax number if applicable and e-mail address of the entrepreneur)
I/we hereby cancel the contract concluded by me/us on the purchase of the following products / delivery of the following service:..............................................................................
(Name of product, order number where necessary and price)
Product ordered on:
Product received on:
Name and address of consumer:
(only for written cancellation)