1. General information

Our terms of delivery and payment, with which our customer agrees when placing the order, and also for future transactions, even if they are not expressly referred to, but which have been received by the customer in the case of an order confirmed by us, shall apply exclusively. Thus departures from the norm only apply if these have been expressly recognised by us in writing. Deviations therefore only apply if they have been expressly acknowledged by us in writing. We are entitled to assign claims arising from the business relationship.

 

2. Terms of delivery

2.1 Delivery will take place as soon as possible. Delivery dates or deadlines bind us only if they have been agreed in writing. Delays in performance due to force majeure or circumstances beyond our control – even at our upstream suppliers – extend the delivery time until they are rectified. Reminders and additional deadlines must be in writing. Claims for late delivery, in particular for damages or reduction are excluded.

2.2 The prices valid on the day of dispatch plus VAT apply. All goods travel at the expense and risk of the recipient. Insurance against breakage and transport risks are only taken out by us at the special request of the recipient against calculation of the corresponding costs. Returns of goods are not possible.

 

3. Payment terms

Our claims are due immediately after invoicing, net, without deductions. To the extent our contract partner is in default with any payment obligations, all our remaining claims against him become due immediately. We are entitled to demand interest at a rate of 5% above the current Bundesbank discount rate in the event of default in payment without proof of damage. We expressly reserve the right to charge higher damages caused by default.

We are entitled to charge at least € 5 per reminder request. Bills of exchange and checks are credited only after deduction of the resulting collection and discount charges. For timely presentation and provision of bill protests a guarantee is not accepted. The bills of exchange or checks accepted on account of payment shall not be canceled or interrupted in the due date. We are entitled to withdraw from any current contracts without setting a grace period, even if they have already been partially fulfilled, without the buyer being able to derive any rights against us from this. We are entitled to the same right if unfavourable facts become known about the creditworthiness of the buyer. The retention of payments to employees or representatives is only effective against us if they present a power of attorney to accept payments.

All payments are to be made with a debt-discharging effect exclusively to Coface Finanz GmbH, Isaac-Fulda-Allee 1, 55124 Mainz, to whom we have assigned our present and future claims arising from our business relationship. We have also transferred our reservation of title to Coface Finanz GmbH.

A set-off by the buyer with counterclaims is excluded, unless the counterclaims are undisputed or legally established. The assertion of a right of retention by the buyer is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or legally established.

 

4. Letters of complaint

The delivered goods must be checked by the customer immediately for completeness and accuracy. The warranty for all goods depends on the respective warranty conditions of the manufacturer or pre-supplier. If the complaint is justified or timely, we will deliver goods free of defects or repair them. Every defect, as well as any deviation from the order must be reported to us in writing immediately upon receipt of the goods, but no later than 4 days after receipt of the goods. Otherwise, the goods are deemed to have been finally accepted. In case of defects, the buyer has only a claim for replacement of faultless goods. A claim for conversion, reduction or compensation does not exist. In the case of merchandise, we assign our claims against the manufacturer in the event of a claim directly to the customer. By collecting complaints, the buyer is not released from his timely payment obligation. Returns have to be made free of charge in any case.

 

5. Retention of title

5.1 We reserve the title to all goods delivered by us or by our distribution partners until full fulfillment of all claims arising from the business relationship with the customer.

All of our rights arising from the retention of title, in particular the rights listed below, have been transferred to Coface Finanz GmbH in accordance with Section 3.

5.2 Irrespective of the assertion of the retention of title, the contract shall remain valid, unless we expressly declare the withdrawal from the contract.

5.3 The customer is obliged to treat the retained goods with care; in particular, he must insure these at his own expense sufficiently for replacement value against fire, water and theft damage as well as similar dangers. He already assigns to us claims against insurance companies or other persons liable for compensation from a claim involving the goods subject to retention of title. The customer immediately informs the insurer of the assignment of claims.

5.4 The customer is entitled to sell the sale’s object in the ordinary course of business; The customer assigns to us hereby now all claims with all ancillary rights up to the amount of our claims against him, resulting from the resale against his customers or third parties, regardless of whether the purchased goods have been sold without or after processing and regardless whether the sale is to one or more customers (“extended retention of title”). We hereby accept this assignment. When reselling the invoice, delivery notes or other documents, the customer must state the name of our product and the size and the profile and the company ID according to the delivery note.

5.5 If the customer sells the reserved goods together with other items and invoices them uniformly, he hereby assigns to us the purchase price claim against the purchaser only to the amount invoiced to the purchaser with regard to the reserved goods including the applicable value added tax. We hereby accept this assignment. If the reserved goods are not listed separately in this invoice, the assignment shall apply in the amount of the price we would have charged to the customer at the time of delivery to the customer. If the customer does not differentiate between the reserved goods and other services rendered to the customer, the entire claim shall be assigned to us.

5.6 The customer remains – subject to a revocation by us – authorised to collect the relevant claims in his own name, even after the assignment. This authorisation does not affect our own right of collection. As long as the customer, in particular, meets his payment obligations, is not in default of payment, does not file an application for the opening of insolvency proceedings or is not otherwise filed or is rejected for lack of assets, does not cease payments or the company owner does not change as a result of payment difficulties, we undertake not to collect the claims.

5.7 The customer’s authority to resell or collect the receivables concerned shall lapse if the customer fails to meet its payment obligations, is in default of payment, files an application for the opening of insolvency proceedings or if such proceedings are instituted elsewhere or are rejected due to lack of assets, ceases payments or the owner of the company changes as a result of payment difficulties. In this case, we are entitled to assert the claims, also directly against the customers of the customer. The customer shall permit us to take all measures in his business which we deem appropriate and necessary for the protection and assertion of our rights arising from the reservation of title and shall grant us, in particular, access to the relevant documents and information on the existence of the reserved goods. If, in this case, the customer does not immediately comply with our request to notify his debtors of the assignment and to request them to pay to us, we shall be entitled to do so on behalf of the customer.

5.8 If the customer sells the reserved goods in accordance with the agreed resale authorisation and the customer withdraws the respective claim from his customer before he has fully fulfilled our claim with respect to the respective reserved goods, the customer undertakes to pay the claim amount to a separate escrow account. Only with complete fulfilment of our existing customer’s claim, the customer is entitled to collect the claim amount from the escrow account at his disposal.

5.9 If the authorisation to resell the goods expires, we shall be entitled to demand immediate return of the reserved goods from the customer and, if necessary, to procure direct possession of the reserved goods, also by means of an authorised representative. A right of retention of the customer is excluded in this case. The customer undertakes to grant us or our authorised representative access to his business premises for the purpose of taking possession of the reserved goods and, if necessary, to inspect his business documents. The costs of taking possession are borne by the customer. In any case, we are entitled to deduct a lump-sum reimbursement amount of 10% of the credited amount from the credit note. The customer shall be free to prove that the goods have a lower return cost or a lower depreciation.

5.10 The customer shall notify us of any impairment of our ownership rights by third parties (seizure, etc.) prior to their occurrence and shall confirm our ownership rights in writing both to the third party and to us. The customer is obliged to object to the interventions or impairments with reference to the ownership of ProLine.

5.11 The customer is prohibited from pledging or assigning reserved goods to third parties. If the customer wishes to sell or assign outstanding receivables, which at least partially represent receivables from our business relationship with the customer, by way of a purchase of receivables, in particular through factoring, the customer must obtain our prior written consent. The customer hereby assigns to us the claims against the factor resulting from the factoring in the amount of our balance from the business relationship with the customer. Should our claims be disputed by the customer, or should there be other uncertainties about our entitlement, the customer shall instruct the factor to pay amounts to be disbursed up to the amount of our balance into a trust account to be designated by us until final clarification.

5.12 The customer’s liability for the loss or deterioration of the reserved goods in accordance with the statutory provisions shall remain unaffected by the retention of title.

5.13 We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realisable value of the securities exceeds the claims to be secured by more than 10%.

5.14 Upon fulfilment of all claims arising from the business relationship, the retention of title expires and ownership of the reserved goods passes to the customer.

 

6. Guarantee

6.1 If the purchaser is a consumer, the mandatory statutory warranty rights in accordance with §§ 474 et seq. BGB (German Civil Code) shall primarily apply to him. Insofar as sentence 1 does not apply, the following provisions apply.

6.2 No warranty is accepted for defects which the customer is responsible for, in particular due to improper handling of the delivered goods.

6.3 Warranty claims due to damage to the purchased item do not exist if

    a) the damage is due to improper handling or negligent behaviour after delivery of the goods, to improperly made changes, notches, use of spare parts of foreign origin, etc., or to an accident;
    b) the purchased item was subject to excessive, improper strain, in particular by exceeding the load limit;
    c) the purchased item was damaged by incorrect wheel position or was impaired by other disturbances in the wheel arch (eg, dynamic imbalance) in its performance;
    d) the purchased item has been damaged by external influences after delivery of the purchased item, in particular mechanical injuries or excessive heating;
    e) the factory number or the manufacturing mark no longer exists or has been changed unrecognisable;
    f) the defect only insignificantly reduces the value or suitability of the purchased item for a use which may be required under the contract;
    g) the defect is due to natural wear.

6.4 The costs of subsequent performance due to an unjustified defect shall be borne by the customer.

6.5 If the purchased item is not free from material defects at the time of risk transfer or material defects occur within the warranty period due to manufacturing or material defects, we may choose to remedy the defect or make a substitute delivery at our option in accordance with the following provisions. In the case of replacement, ownership of the claim is transferred to us. If the repair or replacement fails within a reasonable period, the customer may, at his discretion, demand a reduction of the purchase price or withdrawal from the contract. The exercise of any of these rights by the customer must be notified to us in text form and without delay. Otherwise, the statutory provisions apply, unless otherwise agreed.

6.6 The assertion of further damage by the customer in addition to his resignation is excluded.

6.7 If the customer is an entrepreneur, he must inspect the purchased item immediately, but at the latest within 4 calendar days after receipt of the purchased item, for any defects and identifiable defects, even shortages or faulty deficiencies, as well as from the contractual agreement significantly different carrying capacity or Speedometer to the ProLine then immediately, but at the latest within 2 additional calendar days, in text form. If the customer fails to notify us in due time and form and if any complaints regarding the delivery quantity have not been noted on the delivery note or consignment note, the purchased item shall be deemed to have been approved, unless the defect was not obvious on inspection. If such a deficiency arises later, the claim must be made in writing immediately after discovery, but no later than 4 calendar days after discovery. Otherwise, the purchased item shall also be deemed approved in view of this defect. The aforementioned notification and complaint obligations and legal consequences apply accordingly for incorrect deliveries and differences in quantity. Obvious transport damages must be reported to the delivering transport person upon receipt of the consignment and acknowledged by him. In addition, the invoice number of the purchased item must be indicated.

6.8 If a warranty claim is made for a purchased item, this must be reported to our hotline or our customer service:

ProLine Wheels-TEC GmbH,

Rheinkaistr. 24, 68159 Mannheim

Telephone: +49 (0)621-80330-0

Fax: +49 (0)621-80330-200

Email: info@proline-wheels.de

If this notification is made, we shall arrange for the collection of the purchased item in question. When picking up the purchased goods, the purchase receipt and the corresponding proof of purchase as well as a completed and signed by the customer claim form must be handed over to us. The return is at the risk and expense of the customer.

6.9 Warranty claims of consumers are subject to a limitation period of two years. Other claims for damages and other warranty claims expire in one year.

6.10 If the customer makes a claim against us pursuant to § 478 BGB (German Civil Code) (manufacturer’s recourse), we shall be entitled, insofar as the claim is justified, to reimburse the expenses owed in the form of goods credits. The amount of the credit is based on the price list valid at that time.

 

7. Liability

7.1 ProLine is liable for bodily injuries (damages from injury to life, body or health) which are based on a breach of duty for which ProLine, its legal representatives or vicarious agents are responsible, as well as for other damages which are based on an intentional or grossly negligent breach of duty on the part of ProLine, its legal representatives or vicarious agents. Furthermore, we are liable in accordance with the Product Liability Act.

7.2 Furthermore, we shall only be liable for other damages which are based on a negligent breach of essential contractual obligations (so-called “cardinal obligations”) by us, our legal representatives or vicarious agents. Essential in this sense are those obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose observance the customer may regularly rely. In these cases, our liability is limited to the foreseeable, contract-typical, direct average damage according to the type of agreement.

7.3 Beyond the above regulations, liability of ProLine is excluded.

7.4 The above provisions apply accordingly to non-contractual claims for damages.

 

8.Data protection information; consent to the processing of personal data

The ProLine Wheels-TEC GmbH is dependent on the fact that the business partner with his offer to conclude a sales contract transmits certain personal data (in particular his name, his address as well as his email address and if necessary bank details). “Personal data” means information relating to an identified or identifiable natural person. A person is “identifiable” if it can be identified, directly or indirectly, primarily by association with an identifier such as a name, an identification number, location data or other special features. This personal data is used by ProLine Wheels-TEC GmbH to carry out and process the purchase, in particular to carry out the necessary correspondence, to transfer ownership and hand over the purchased item as well as to issue invoices, carry out receivables management and exercise or defend legal claims. In addition, ProLine Wheels-TEC GmbH may use the personal data to send direct mail to the business partner in paper form or in electronic form within the scope of certain promotions.

If the business partner thus decides to submit an offer to purchase products from ProLine Wheels-TEC GmbH, he voluntarily consents by submitting his offer to the transmission of this personal data to  ProLine Wheels-TEC GmbH and the use in accordance with the following paragraphs 3 and 4.

The legal basis for the processing of the data is Art. 6 para.  1 lit. b of the General Data Protection Regulation (GDPR), insofar as it is necessary for the fulfilment of contractual obligations. Insofar as the data processing is based on the consent of the business partner, the legal basis is also Art. 6 para. 1 lit. a GDPR. The processing and storage of this data is carried out at ProLine Wheels-TEC GmbH for the purposes specified in paragraph 1 according to the statutory provisions of the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG) and the EU General Data Protection Regulation (GDPR). A passing on of the data to third parties does not take place, except for the companies involved in the context of the contract winding up, like logistics enterprises and collection enterprises.

The personal data will be deleted by ProLine Wheels-TEC GmbH as soon as they are no longer required for the purpose of proper accounting or for the exercise or defence of legal claims or for the implementation of advertising campaigns. The data will also be deleted if the business partner revokes the use of the personal data for the future and ProLine Wheels-TEC GmbH no longer needs it for the purpose of proper bookkeeping and for the exercise or defence of legal claims. Currently, the statutory retention periods for accounting documents are 10 years, starting from the end of the year in which the business transaction took place, ie in the case of a revocation of the use for the future, the data will be deleted only after expiry of the aforementioned deadline.

Responsible for the storage and use of personal data:

ProLine Wheels-TEC GmbH

Rheinkaistrasse 24, 68159 Mannheim

Tel.: +49 621 / 80 330 – 0

Fax: +49 621 / 80 330 – 200

Email: info@proline-wheels.de

The business partner has the right at any time to receive free information from ProLine Wheels-TEC GmbH regarding the personal data stored about him. Furthermore, he has the right to correction and / or completion to ProLine Wheels-TEC GmbH if the processed personal data concerning him are incorrect or incomplete. Instead, the business partner may also require that the use of personal data be restricted, with the result that, apart from their retention, the data may be processed only with the consent or for the purpose of asserting, exercising or defending legal rights or protecting the rights of another natural or legal person or for reasons of an important public interest of the Union or of a Member State.

The business partner has the right to revoke his consent to the storage and use of his data at any time with future effect. The revocation can be addressed verbally, in writing, by fax or in any other textual form (eg by email) to ProLine Wheels-TEC GmbH under the contact data referred to in section 5 above. In the event of a cancellation, ProLine Wheels-TEC GmbH will no longer use the personal data in the context of promotions in the future and will also delete the data at the earliest possible date. The business partner is advised that a revocation of the consent does not affect the legality of the processing of the personal data on the basis of the consent until the revocation.

The business partner also has the right to object at any time to the processing of personal data concerning him for reasons relating to his particular situation, except where such objection is necessary for the performance of contractual or legal obligations, including profiling based on these provisions.

The business partner can demand from ProLine Wheels-TEC GmbH that the personal data concerning him be deleted immediately if (a) the personal data are no longer necessary for the purposes for which they were collected or processed in any other way or (b) the business partner has given his consent to the processing in accordance with Art. 6 para. 1 a) or Art. 9 para. 2 lit. a of the GDPR and there is no other legal basis for the processing, or (c) an objection is lodged to the data processing and there are no overriding legitimate reasons for the processing, or (d) the personal data have been unlawfully processed or (e) the deletion is necessary to fulfil a legal obligation under Union law or the law of the Federal Republic of Germany. The right of cancellation does not exist if the processing is required (a) to exercise the right to freedom of expression and information or (b) to fulfil a legal obligation, the processing under the law of the EU or the Federal Republic of Germany, or for exercise a task that is in the public interest or in the exercise of public authority that has been delegated to us or (c) for reasons of public interest in the field of public health; or (d) for asserting, pursuing or defending legal claims.

To the extent that the counterparty has asserted our right to rectify, erase or restrict the processing of its personal data, we will notify all recipients who have disclosed the personal data relating to it that rectification or deletion of the data or restriction of processing because, this proves to be impossible or is associated with a disproportionate effort. In addition, we are obliged to inform the business partner on request about these recipients.

The business partner has the right to receive the personal data concerning him which he has provided to us in a structured, common and machine-readable format. In addition, he has the right to communicate this data to another data controller without being hindered by us, provided that (a) the processing is based on a consent pursuant to Art. 6 para. 1 a) of the GDPR or Art. 9 para. 2 a) GDPR or a contract pursuant to Art. 6 para. 1 b) GDPR is based and (b) the processing is carried out using automated procedures.

If the business partner is of the opinion that ProLine Wheels-TEC GmbH has infringed applicable data protection regulations by processing personal data concerning him, the business partner has the right to complain to the Landesbeauftragter für Datenschutz (data protection commissioner) Niedersachsen, Prinzenstr. 5, 30159 Hannover, Tel: 0511 120 4500, Fax: 0511 120 4599.

It is the business partner’s responsibility to notify ProLine Wheels-TEC GmbH of any changes to his or her personal data, so that ProLine Wheels-TEC GmbH can immediately amend the data stored on it and delete incorrect data.

 

9. Written form

Any agreement made between us and the customer shall only be legally effective if made in writing between the parties. Further additional terms or contractual clauses introduced by the customer shall be deemed rejected as long as we have not agreed to these additional terms in writing.

 

10. Final provisions

The law of the Federal Republic of Germany applies.

10.1 If the customer is a merchant, the place of performance and the exclusive place of jurisdiction are the registered office of ProLine.

10.2  The provisions of the CISC (United Nations Convention on Contracts for the International Sale of Goods) shall not apply.

10.3 Should one of the above provisions be ineffective, this shall not affect the validity of the remaining provisions. In such a case, the contracting parties will make a legally effective substitute regulation that comes as close as possible to the economic effect of the ineffective provision. The same applies if there is a gap in the contract that requires fulfilment.

Mannheim, 8 February 2019

ProLine