Terms of service
General Terms and Conditions of Arden Automobilbau GmbH
§ 1 General, Scope of Application
(1) These General Terms and Conditions ("GTC") shall apply to all business relations with our contractual partners. The GTC apply if the contractual partner is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. They also apply to consumers (§ 13 BGB), but only insofar as this is explicitly indicated. In addition to the GTC, our General Terms and Conditions of Purchase shall apply to purchases.
(2) All business relations entered into by us shall be concluded exclusively on the basis of these GTC. Deviating or conflicting clauses in the GTC of our contractual partners shall only become part of the contract if we have expressly agreed to them.
(3) Individual agreements made with the contractual partner in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC, even if the contractual partner is a consumer. A written contract or our written confirmation shall be authoritative for the content of such agreements.
(4) References to the applicability of statutory provisions shall only have clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of Contract
(1) All information, statements and assurances made by employees or representatives of Arden are made for information purposes and shall only become legally binding upon our written confirmation.
(2) The presentation of goods in the online store does not constitute an offer, but a non-binding invitation to the contractual partner to order. By ordering the goods, the contractual partner makes a binding offer to enter into a contract. We shall confirm receipt of an order electronically without delay. This confirmation of receipt, as well as the acceptance of an order by telephone, does not constitute a binding acceptance on our part. The contract shall only be concluded upon a separate order confirmation. We shall be entitled to accept the binding offer of the contractual partner within seven (7) working days, in the case of an electronic order within three (3) working days, from receipt of the contractual partner's order.
(3) The provisions of this § 2 shall also apply to consumers.
§ 3 Prices
(1) Unless otherwise stated in our order confirmation, our prices shall apply to deliveries "ex works". Packaging, freight, postage, insurance and delivery charges shall be invoiced separately.
(2) Price quotations in brochures and catalogs are non-binding and are for information purposes only. This provision shall also apply to consumers.
(3) The gross prices stated by us shall apply to consumers. In business transactions with entrepreneurs or merchants, the statutory value-added tax is not included in price quotations; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
§ 4 Terms of payment
(1) Unless otherwise stated in the order confirmation, invoices issued by us shall be paid immediately without deduction. Invoices for vehicle deliveries are to be paid upon collection. These provisions shall also apply to consumers.
(2) In the case of conversions, the agreed work performance must be accepted upon completion. Invoices for repairs, conversions and assembly work on vehicles made available to us are to be paid immediately without deduction after acceptance. Acceptance shall take place upon collection of the vehicle after completion. A record of the acceptance shall be drawn up at the time of collection and shall be signed by both parties to the contract. These provisions shall also apply to consumers.
(3) In the event that the payment deadline is exceeded in accordance with clause 1, sentence 1, the contractual partner shall be in default. In this case, we shall be entitled to charge interest on arrears to consumers at a rate of 5% p.a. above the respective base interest rate of the European Central Bank and to other contractual partners at a rate of 8% p.a. above the respective base interest rate. We reserve the right to claim further damages for default. § Section 353 of the German Commercial Code (HGB) shall remain unaffected.
(4) In the case of partial deliveries or partial services, we may, in the event of a delay in payment by the contractual partner, refuse to perform the services still to be rendered under the contract until the outstanding claims have been satisfied. Furthermore, in such a case we shall be entitled to demand concurrent payment for the remaining services still to be rendered, in deviation from the provisions under item 1 above.
(5) Non-compliance with the terms of payment, default or other circumstances that reduce the creditworthiness of the contractual partner shall entitle us to declare all claims from the current business relationship immediately due and payable.
(6) The contractual partner shall only be entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.
§ 5 Delivery periods and dates
(1) Delivery periods and dates shall only apply in the sense of approximate information unless we have expressly designated them as binding in writing. The delivery period for purchase contracts shall commence on the date of our order confirmation, but not before clarification of all technical and commercial details and submission of any necessary approvals. Any changes in the design of the delivery item requested by the contractual partner within the delivery period shall interrupt and extend the delivery period accordingly. Performance periods in connection with the execution of assembly, repair and maintenance contracts shall not commence before our order confirmation and provision or availability of the vehicle on which the work is to be performed. In all other respects, the provisions above under sentence 2 and sentence 3 shall apply accordingly.
(2) In the event of unforeseen events, such as e.g. delays in delivery on the part of the supplier, strike, lockout, shortage of materials, official measures as well as other unforeseen events, the respective delivery or performance period shall be extended by the period between the occurrence and termination of the reason for the hindrance.
(3) In cases of non-availability or non-performance of the service due to substantial impediment or impossibility for which we are not responsible, we shall be entitled to withdraw from the contract without granting damages if we have informed the respective contractual partner without undue delay about the non-availability of the service owed and at the same time have undertaken to refund any consideration already received from the contractual partner. After we have provided the relevant information, the contractual partner may demand a declaration from us as to whether we will withdraw or deliver within a reasonable period of time. If we do not make a declaration, the contractual partner may withdraw from the contract. The contractual partner may not reject partial deliveries or partial performance unless it has a justified interest in rejecting them. Legal claims of the contractual partner, which he may assert instead of a claim for damages or in addition to a claim for damages, shall remain unaffected.
(4) We shall be released from compliance with any delivery deadline if the contractual partner is in default of payment from previous orders or with regard to a partial delivery of an order or fails to fulfill other contractual obligations.
(5) In the case of dispatch of goods, the date of dispatch shall be deemed to be the date of delivery; in all other cases, the date on which the contractual partner receives notification of readiness for dispatch, delivery or handover shall be decisive.
(6) The provisions of this § 5 shall also apply to consumers.
§ 6 Shipment/Risk
(1) Shipment shall be made to the contractual partner or to a third party according to the contractual partner's instructions and at the contractual partner's expense.
(2) In the event of shipment, the risk shall pass to the contractual partner as soon as the goods to be delivered have left our premises. The same shall apply if the goods to be delivered are sent directly to the contractual partner by a sub-supplier at our instigation. These provisions shall also apply in the case of partial deliveries or if we have assumed other types of performance. In the case of consumers, the risk of loss or destruction of the shipment shall not pass until the goods to be delivered are handed over to the consumer.
(3) If the shipment is delayed due to circumstances for which the contractual partner is responsible, the risk shall pass to the contractual partner on the date of notification of readiness for shipment to the contractual partner.
(4) We shall be entitled to insure the goods to be shipped against the transport risk at the expense of the contractual partner. We shall only be obliged to do so on the basis of a special written agreement.
(5) Goods or other services not subject to shipment shall be accepted by the contractual partner at our premises within seven (7) days at the latest from receipt of the respective delivery or collection notice.
(6) In the event of a justified claim for damages, we may demand a lump sum amounting to 15% of the purchase price in the case of contracts for new and used cars and 20% in the case of contracts for spare parts or other services. The contractual partner expressly reserves the right to prove that the damage did not occur at all or that it was considerably less than the lump sums applied. We ourselves shall also not be bound by the lump sums for damages if we can prove higher damages.
(7) For orders in the Arden online store, the following additional provisions shall apply: The prices are final prices including VAT, and plus shipping costs. Shipping is exclusively against cash on delivery, financing, prepayment or credit card. In the event of a revocation by the contracting party, the latter shall bear the return costs.
§ 7 Warranty
(1) The contractual partner shall inspect delivered goods immediately upon receipt and notify any defects in writing without delay, at the latest within five (5) working days after receipt at the place of destination. Hidden defects shall be notified immediately upon discovery. Failure to comply with the time limit for giving notice of defects shall result in the exclusion of the contractual partner with claims of any kind with regard to the defects not notified or notified late.
(2) In the case of defective deliveries or services, we shall be given the opportunity to inspect the defect notified, at our discretion, either on site or at our registered office or at the registered office of a company associated with us. The inspection shall be carried out without delay, provided that the contractual partner demonstrates an interest in immediate completion. No changes may be made to defective goods and/or services without our consent, otherwise the contractual partner shall lose its warranty claims. This provision shall also apply to consumers.
(3) In the event of demonstrable material or workmanship defects, we may, at our discretion, remedy the defect free of charge or, against return of the defective goods, either provide a replacement free of charge or credit the invoice value or grant the contractual partner a reduction while reasonably safeguarding his interests. This provision shall also apply to consumers.
(4) The warranty claims of the contractual partner shall become statute-barred after one (1) year from the transfer of risk in the case of new objects of purchase. In the case of used objects of purchase, warranty rights are excluded. For consumers, the warranty period for new objects of purchase shall be two (2) years beginning with the transfer of the object of purchase and for used objects of purchase one (1) year from the transfer of the object of purchase. The contractual partner's warranty claims for repairs, modifications and assembly shall expire one (1) year after acceptance. This provision shall also apply to consumers. The aforementioned warranty exclusions shall not apply to claims for damages arising from liability for material defects which are based on an intentional or grossly negligent breach of our obligations, or which are based on the fact that we or our vicarious agents have negligently breached contractual cardinal obligations or otherwise breached obligations essential to the contract, as well as in the event of injury to health, life and limb.
(5) Information on performance increases and/or performance kits are to be understood as average values. Test-related deviations of +/- 5 % are possible. Since the actual performance of the factory engines may deviate from the performance stated by the manufacturer, the stated additional performance is the authoritative performance specification (e.g. performance increase by 30 hp). The specification of the basic power and the final power (e.g. power increase from 500 to 530 hp) is for information purposes only. Reduced performance of up to 5% may occur in individual cases and does not constitute a defect. This provision shall also apply to
§ 8 Duty of care
The contractual partner, even if it is a consumer, must ensure that all modifications and conversions to its vehicle, if it participates in public traffic, are entered in its vehicle documents (vehicle title and vehicle registration document) in accordance with the statutory provisions. If necessary, the contractual partner must present the vehicle to the Technical Inspection Agency (TÜV) or any other inspection organization in order to obtain the registration of the modifications made to the motor vehicle or the motor vehicle part in the vehicle documents. We would like to point out that the operating license of a motor vehicle may expire if the aforementioned entries are not made. If a vehicle or vehicle component is sold as an "export version" or with a comparable description, it is generally not approved for road traffic in the Federal Republic of Germany. Any risks with regard to the registrability of the vehicle modification shall be borne by the contractual partner.
§ 9 Extended Lien
(1) We shall be entitled to a contractual lien on the items that have come into our possession on the basis of the order due to claims arising from the order.
(2) The contractual lien may also be asserted on account of claims arising from work previously carried out, spare parts deliveries and other services, insofar as they are connected with the subject matter of the order. The contractual lien shall only apply to other claims arising from the business relationship insofar as these are undisputed or a legally binding title exists and the subject matter of the order belongs to the contractual partner.
(3) The provisions of this § 9 shall also apply to consumers.
§ 10 Liability for consequential damages or product liability, vehicle warranty, general operating license, vehicle liability
(1) The following information and regulations of this § 10 also apply to consumers:
(2) The contractual partner is informed and acknowledges that the services, products, tuning measures offered by Arden as well as the changes made to the vehicle in the context of tuning the engine, as well as the control unit or the control data lead to a change in the performance data of the customer vehicle. The contractual partner is hereby informed that the engine and possibly also other vehicle units and vehicle parts are exposed to a higher stress and load and this can lead to a higher wear and tear on the customer vehicle due to physical reasons. In particular, overstressing and continuous performance, as well as the increase in the top speed of the customer vehicle achieved by the tuning, can have an effect on the service life of the engine and its aggregates. In the event of installation of a performance upgrade, Arden shall be expressly liable only for such damage to the vehicle as is caused by a defective performance upgrade. Any liability for damage caused solely due to the higher engine load is excluded.
(3) Arden expressly points out that the installation of tuning products leads to the loss of the vehicle manufacturer's or vehicle seller's warranty with regard to the engine and drive train. In addition, the installation of a performance upgrade may affect possible warranty claims against the seller of the vehicle. With the exception of claims that may arise from an engine warranty granted by Arden, Arden cannot be held liable for this.
(4).A vehicle modification may result in the expiration of the general operating permit for the vehicle. Modifications and conversions of vehicles participating in public road traffic must be approved by an officially recognized testing facility within the meaning of § 19 StVZO. The contractual partner must organize this acceptance at its own expense. In addition, the contractual partner is informed that without a general operating license there is also no insurance coverage. The responsibility of converted vehicles or their parts lies with the contractual partner.
(5) In view of the product and equipment-related diversity in the vehicle sector, Arden is unable to check all properties for compatibility and to guarantee this. A suitability for acceptance by an officially recognized testing facility within the meaning of § 19 StVZO is not agreed.
(6) The performance enhancement of motor vehicles requires a re-typing with regard to motor vehicle liability insurance and comprehensive insurance. The Purchaser itself is obliged to ensure compliance with the insurance coverage. He shall indemnify Arden against any liability in this respect.
§ 11 Retention of Title
(1) We reserve the title to the goods delivered by us until the complete fulfillment of our payment claims against the contractual partner from the underlying business relationship, even if the contractual partner is a consumer.
(2) Any processing or treatment shall be carried out on our behalf without any obligation on our part and without any loss of ownership on our part. If the contractual partner combines goods subject to retention of title with other goods, we shall be entitled to co-ownership of the new item in proportion to the invoice value of all combined goods. The new item shall be deemed to be reserved goods within the meaning of these terms and conditions.
§ 12 Original vehicle parts
Parts removed from vehicles (original or old parts) must be taken over by the contractual partner, even if he is a consumer, within a period of four (4) weeks. We do not assume any liability for storage beyond this period. A replacement is excluded. This provision shall not apply to parts that are offset or otherwise become our property.
§ 13 Place of performance, place of jurisdiction, applicable law
(1) These General Terms and Conditions and all legal relations between us and the contractual partner shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance for all deliveries and services, in particular for claims for subsequent performance, shall be our registered office in Krefeld.
(3) The exclusive place of jurisdiction for disputes arising from and in connection with the contractual relationship shall be our registered office in Krefeld. However, we shall also be entitled to assert claims against the contractual partner at its registered office.
Krefeld, November 2015