YUNEEC Europe GmbH
GENERAL TERMS AND CONDITIONS OF BUSINESS
1. Scope of applicability
1.1 These General Terms and Conditions of Business of YUNEEC Europe GmbH (hereinafter referred to as “GTC”) shall apply exclusively for business dealings with companies within the meaning of Section 14 BGB [German Civil Code], legal entities under public law or special funds under public law.
1.2 The GTC shall apply for all services and ongoing business relationships, also for future relationships, even where these GTC are no longer expressly agreed.
1.3 The price lists and catalogues of YUNEEC Europe GmbH (hereinafter referred to as “YUNEEC Europe”) shall apply additionally in their currently applicable versions.
1.4 The GTC and the price list of YUNEEC Europe in their currently applicable versions can be viewed and downloaded at www.yuneec.de.
2. Protective clause: Unless expressly agreed otherwise by contract, the GTC of YUNEEC Europe shall apply exclusively. Other regulations, in particular General Terms and Conditions of the Customer, shall not be an integral part of the contract, even where YUNEEC Europe has not expressly objected to such.
3.Conclusion of the contract, scope of services
3.1 Offers made by YUNEEC Europe are non-binding at all times.
3.2. The Customer shall be bound to its order (offer of contract) for two (2) weeks. The contract shall come into effect upon the acceptance of the order by YUNEEC Europe; such acceptance may be tacitly declared by dispatching the ordered goods, or by handing said goods over to the carrier or making said goods available to be picked up by the Customer, for example.
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3.3 Illustrations, drawings, technical data and information on the dimensions or weight of the services (hereinafter referred to as “Goods”) ordered by the Customer shall not constitute any agreement on quality. The same shall apply for any documents handed over to the Customer by YUNEEC Europe concerning the scope of delivery, appearance and material characteristics of the Goods.
3.4 YUNEEC Europe shall be entitled to partial performance unless such is unreasonable for the Customer. Partial performance shall be deemed unreasonable for the Customer in particular where partial performance is of no interest for the use of the Goods as stipulated by contract.
4.1 Subject to a written agreement stating otherwise, the list prices valid at the time the order was placed, plus applicable VAT and any transport and packaging costs incurred, shall apply. Mode of dispatch and packaging may be specified by YUNEEC Europe.
4.2 Insurance shall be taken out only at the explicit request of the Customer where the Customer pledges in writing to assume any and all costs incurred as a result.
4.3 YUNEEC Europe shall reserve the right to charge a lump sum for expenses in order to pass any and all costs incurred by the Customer on to the Customer.
4.4 Reselling of merchandise to those dealer that are not authorized by Yuneec Europe GmbH are in need of the explicit permission of Yuneec Europe GmbH
5. Delivery dates and periods
5.1 YUNEEC Europe shall endeavour to deliver the Goods in a timely manner, whereby specified delivery periods and dates are, however, non-binding unless such periods and dates have been expressly agreed as binding.
5.2 Compliance with any agreed and binding delivery periods shall require the contractual obligations and duties to cooperate, in particular payment in full of the amount due by the Customer to YUNEEC Europe under the terms of the contract, to be fulfilled.
5.3 Obligations to deliver shall be subject to the correct and punctual delivery of required materials by suppliers.
5.4 Should the Goods not be available, YUNEEC Europe shall be entitled to withdraw from the contract. YUNEEC Europe shall be obligated to inform the Customer without delay of the non-availability of the Goods and to immediately reimburse the Customer for any counter-performance already provided.
5.5 Force majeure or any other impediment beyond the control of the Contracting Party citing such (in particular, war, strike, lock-outs, walk outs, government prohibitions, power and transport problems and malfunctions, etc.) shall cause the delivery periods to be extended and the delivery dates postponed. Any citation of the aforementioned provision shall require the Party affected by the particular impediment to inform the other Party without delay of such impediment.
6. Transfer of risk
6.1 The risk relating to the Goods shall be transferred to the Customer upon handing over said Goods to the carrier/forwarder or the Customer itself; this shall also apply for freight-free deliveries.
6.2 The risk shall also be transferred to the Customer where the dispatch or pick-up of the Goods is delayed due to circumstances for which the Customer is responsible.
7. Terms of payment, assignment
7.1 YUNEEC Europe’s claim for payment (hereinafter also referred to as “Receivable”) shall become due upon the conclusion of the contract.
7.2 The Customer shall be in default should it fail to make payment within thirty (30) days of receipt of the invoice.
7.3 If the Receivable is credited to YUNEEC Europe’s account within eight (8) days of receipt of the invoice, YUNEEC Europe shall grant a two (2) percent cash discount. This shall not apply where YUNEEC Europe has other outstanding claims against the Customer at the time of the receipt of payment.
7.4 The assertion of rights of retention and set-off on the part of the Customer shall only be permitted where YUNEEC Europe has acknowledged the Customer’s claim in writing or such has been established as legally binding.
7.5 Bills of exchange and cheques shall only be accepted by YUNEEC Europe where such has been expressly agreed. Where such an express agreement exists, acceptance shall be on account of performance. The Customer shall bear any and all discount and bank charges.
8. Acceleration of all due payments
8.1 Where the Customer is in default of payment of a Receivable, YUNEEC Europe shall be entitled to accelerate payment of all outstanding claims against the Customer after a period of two (2) weeks has expired fruitlessly.
8.2 Should it become apparent after the contract has been concluded that payment of YUNEEC Europe’s Receivable is at risk due to lack of funds on the part of the Customer, YUNEEC Europe shall be entitled to the rights pursuant to Section 321 BGB (Defence of Insecurity).
9. Receipt and returns
9.1 The Customer shall inspect the Goods immediately upon receipt and report any defects without delay to YUNEEC Europe in writing. In all other matters, the Customer’s duty to inspect and report defects shall be determined by Section 377 HGB [German Commercial Code]. Where larger quantities of similar goods are delivered, the entire batch may only be rejected on grounds of defects if the defects have been detected by way of a recognised representative sampling procedure.
9.2 At YUNEEC Europe’s request, the rejected Goods shall be returned freight-free to YUNEEC Europe. Where a notice of defects is justified, YUNEEC Europe shall reimburse the costs of the most favourable means of shipping.
9.3 The Return Merchandise Authorisation (RMA) issued by YUNEEC Europe shall be used on all return shipments for the purpose of identifying the Goods. The currently applicable return policies, viewable and available for download at www.yuneec.de, shall apply.
9.4 YUNEEC Europe must be notified in advance and without exception of all returns and must issue an RMA by way of approval.
9.5 The RMA issued by YUNEEC Europe shall be used on all return shipments for the purpose of identifying the Goods.
9.6 For every return of Goods, YUNEEC Europe shall charge an amount of 30% of the value of the Goods for the re-stocking of said Goods.
10.1 Where there is an express agreement on acceptance, the Customer must accept the Goods at the YUNEEC Europe factory or warehouse.
10.2 Upon request, a record shall be kept of the acceptance procedure.
10.3 Should the Customer fail to appear on the agreed acceptance date despite having been given adequate notice of such date and having been informed of the consequences of non-appearance, the Goods shall be deemed to have been accepted as per contract.
11. Retention of title
11.1 All delivered Goods shall remain the property of YUNEEC Europe (hereinafter referred to as Goods subject to Retention of Title) until such time as all Receivables, including future Receivables, arising from the business relationship have been settled in full. The Customer shall be entitled to sell the Goods subject to Retention of Title in the course of regular business. The Goods may not be pledged or assigned by way of security.
11.2 Neither the recovery of individual debts from an outstanding invoice nor the balancing and confirmation of an account shall invalidate the retention of title.
11.3 If the delivered items are processed by the Customer to form a new movable item, processing shall be on behalf of YUNEEC Europe without placing YUNEEC Europe under any obligation. The new item shall be the property of YUNEEC Europe. If processing is done using goods that do not belong to the Customer, YUNEEC Europe shall acquire co-ownership of the new item in the ratio of the value of the Goods subject to Retention of Title to the other goods at the time of processing.
11.4 The Customer shall be obliged to keep the Goods subject to Retention of Title purchased from YUNEEC Europe separate from goods owned by it or a third party (hereinafter referred to as “Third-Party Goods”). If, contrary to this obligation, Goods subject to Retention of Title are mixed with Third-Party Goods and if the Goods subject to Retention of Title can no longer be separated from the Third-Party Goods, YUNEEC Europe shall become the co-owner in accordance with statutory regulations.
11.5 If the Customer acquires sole or co-ownership of an item as a result of mixing goods, it shall at this stage transfer its co-ownership to YUNEEC Europe in the ratio of the value of the Goods subject to Retention of Title to the Third-Party Goods at the time the goods were mixed. The value of the Goods subject to Retention of Title shall be determined by their list price, taking into account a reasonable discount for use. In this case, the Customer shall store the goods owned or co-owned by YUNEEC Europe, which are also deemed Goods subject to Retention of Title, free of charge.
11.6 If Goods subject to Retention of Title are sold by the Customer either separately or together with Third-Party Goods, the Customer shall at this stage assign the receivables from the resale in the amount of the value of the Goods subject to Retention of Title including all ancillary rights and in first rank. If YUNEEC Europe is the co-owner of the resold Goods subject to Retention of Title, the assignment of the receivables from the resale shall also extend to the amount that is equivalent to the value of the Customer’s share in the co-ownership. The value of the Goods shall be determined by YUNEEC Europe’s list price, taking into account a reasonable discount for use.
11.7 Subject to revocation, YUNEEC Europe shall authorise the Customer to recover the receivables specified in the previous paragraph. YUNEEC Europe shall not make use of its own authority to collect as long as the Customer also meets its payment obligations to third parties. Upon request by YUNEEC Europe, the Customer shall disclose the names of the debtors of the assigned receivables and notify them of such assignment. YUNEEC Europe shall be authorised to personally notify the debtor of the assignment.
11.8 The Customer must inform YUNEEC Europe immediately of any compulsory enforcement measures initiated by third parties in respect of the Goods subject to Retention of Title, and hand over all documents necessary to file an objection. Upon suspension of payment, or the application for or initiation of insolvency proceedings (all and any rights of the liquidator under the Insolvency Code shall remain unaffected) or judicial settlement proceedings, the right to resell, use or install the Goods subject to Retention of Title and the authorisation to recover the assigned receivables shall be forfeited. The direct debit authorisation shall also cease to apply for actions in proceedings relating to checks or bills of exchange. In such cases, YUNEEC Europe shall be entitled to retrieve its Goods subject to Retention of Title or to have such retrieved by authorised parties.
11.9 Should the security to which YUNEEC Europe is entitled due to advance assignment exceed the value of the secured claim by more than ten (10) percent, YUNEEC Europe shall in this respect, at the Customer’s discretion, be obligated to either reassign or release the security. The value of YUNEEC Europe’s secured claim shall be determined by the price invoiced to the Customer by YUNEEC Europe. Should the Customer include a receivable assigned to YUNEEC Europe from the resale of Goods in a current account relationship with its Customer, the current account receivable shall be assigned in full.
11.10 Should YUNEEC Europe withdraw from the contract on grounds of conduct contrary to the terms of the contract, in particular, default of payment, (“enforcement event”), YUNEEC Europe shall be entitled to request handover of the Goods subject to Retention of Title.
12. Non-compliance with a payment obligation
12.1 Where, in the event of the non-fulfilment of a payment obligation or due to conduct on the part of the Customer that is in breach of duty, YUNEEC Europe withdraws from the contract or takes back the Goods for other reasons on grounds of the retention of title, the Customer shall pay an appropriate amount of compensation for use for the period during which it was in possession of said Goods.
12.2 The amount of compensation must not exceed the price. Restitution shall also be made for any expenses incurred as a consequence of the contract.
13.1 YUNEEC Europe shall guarantee that the construction and the material of the Goods are free of defects in accordance with the current state-of-the-art technology. Standard tolerances in the property, colour, etc., of the Goods shall not constitute a defect. 13.2 The Customer may request subsequent performance due to a defect in the delivered Goods. Subsequent performance shall be provided in the form of subsequent improvement or replacement delivery, at YUNEEC Europe’s discretion, unless the manner of subsequent performance selected by YUNEEC Europe is unreasonable for the Customer.
13.3 If the Goods are installed by the Customer, claims for defects shall only be permitted where the installation was carried out professionally and in accordance with the installation instructions.
13.4 Natural wear and tear and defects that can be attributed to careless and improper handling by the Customer are also excluded from the guarantee.
14.1 YUNEEC Europe shall be liable only in cases of intent, culpable breach of contractually essential obligations within the meaning of Section 14 (2) GTC, gross negligence on the part of the corporate bodies or senior managers, culpable injury to life, body or health, fraudulent concealment of defects, warranties for the absence of defects, also in the event of damage caused by breach of duty during the contract negotiations, irrespective of the legal basis - in particular for damage not incurred to the Goods themselves -, and where the German Product Liability Act stipulates the acceptance of liability for defects.
14.2 Contractually essential obligations shall be deemed to exist where the exemption from liability refers to an obligation, the fulfilment of which makes the due execution of the contract at all possible and upon the observance of which the Customer should be able to regularly rely.
14.3 Where contractually essential obligations are breached (Section 14 (2) GTC), YUNEEC Europe shall also be liable for gross negligence on the part of non-executive employees as well as for simple negligence. In the event of simple negligence, liability shall be limited to the reasonably foreseeable damage that is typical for this type of contract.
14.4 Any further liability - irrespective of the legal basis - including, in particular, compensation for damages not incurred to the Goods, shall be excluded.
14.5 YUNEEC Europe shall not be liable for the consequences of defects for which warranty is excluded.
14.6 Liability shall be excluded where the Goods have been altered by installing other items not supplied to the Customer by YUNEEC Europe and where this alteration is causally related to the damage incurred.
14.7 Liability for material defects shall be excluded where the Customer is in breach of its duty to inspect and report defects (cf. Section 9.1 GTC).
15. Time limitation
15.1 Unless otherwise agreed, any and all claims on the part of the Customer, which it is entitled to assert against YUNEEC Europe due to and in connection with the delivery of the goods - irrespective of the legal basis -, shall lapse one (1) year from the date of delivery or, where acceptance is required, from the date of acceptance.
15.2 Subsequent performance shall have no effect on the time limitation of Section 15.1 GTC.
15.3 Sections 15.1 and 15.2 shall not apply in cases of malice, insofar as the damage is caused by injury to life, body or health, or where liability in accordance with the German Product Liability Act is given.
16. SCHUFA [Protection Association for General Creditworthiness]
16.1 Where a legitimate interest exists, we shall forward the data provided to us by the Customer in the course of the purchase process and during handling of the purchase agreement to SCHUFA Holding AG (hereinafter referred to as SCHUFA) for the purpose of a credit check in order to receive information about said Customer from SCHUFA. Irrespective of this, we may also provide SCHUFA with data relating to conduct that is not according to contract (e.g. submitted court order for uncontested claims, enforcement order or compulsory enforcement measures). Under the German Federal Data Privacy Act, these reports may only be made insofar as such are permissible after weighing up all interests concerned.
16.2 SCHUFA stores and transmits data to its contract partners on the Single European Market in order to provide the latter with information on the assessment of the creditworthiness of natural persons. SCHUFA contract partners are primarily banks, credit card companies and leasing companies. SCHUFA also provides information to commercial enterprises, telecommunication companies and other companies that offer goods and services on credit. SCHUFA shall only disclose personal data where, in individual cases, a legitimate interest in such can be credibly demonstrated. SCHUFA shall disclose address details in order to identify debtors. When offering information, SCHUFA may also provide its contract partners with a probability value, calculated on the basis of stored data, for assessing the credit risk (score procedure).
16.3 The Customer may ask SCHUFA for information about the stored data concerned. Further information about the SCHUFA information and score procedure can be found on a fact sheet, viewable at www.schufa.de. SCHUFA’s address is: SCHUFA Holding AG, Verbraucherzentrum Hannover, PO box 5640, 30056 Hannover.
17. Sending information via newsletter
The e-mail address of the customer is used in addition to the contract to inform the customer by e-mail about offers, advertising, new products and information about own similar goods / services. The customer may object to the use of his e-mail address at any time without incurring other transmission costs according to the basic tariffs. If the customer does not wish to receive further advertising, he / she can do so by e-mail to the following address: email@example.com or click on the "unsubscribe here" link at the bottom of the newsletter.
18. Media Database
19.1 Personal data shall be stored by YUNEEC Europe in compliance with statutory regulations.
19.2 Ancillary agreements and amendments shall require the written confirmation of YUNEEC Europe
19.3 Should individual provisions of these GTC be ineffective, this shall not affect the remaining provisions hereof.
19.4 Place of jurisdiction for all disputes arising from and in conjunction with this contractual relationship is the registered office of YUNEEC Europe. YUNEEC Europe shall reserve the right to also bring legal action at the statutory place of jurisdiction of the Customer.
19.5 The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the conflict of laws of the EGBGB [Introductory Law to the German Civil Code].
Nikolaus-Otto Strasse 4
24568 Kaltenkirchen, Germany
Company’s registered office: Kaltenkirchen
Registration court: Hamburg
Commercial register: HRB 131190
Managing Director: Jörg Schamuhn