Terms and Conditions
General Terms and Conditions of CMS Automotive Trading GmbH
(1) These terms and conditions apply to all contracts, deliveries and other services of CMS Automotive Trading GmbH (hereinafter: "Seller"), towards its customers regarding the sale of goods via the online store at http://shop.cms-wheels.de Deviating regulations of the customers do not apply, unless the Seller has confirmed this explicitly and in writing.
(2) The business relations between the Seller and the Customers shall be governed by the laws of the Federal Republic of Germany. The validity of UN sales law is excluded.
(3) Agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall in all cases take precedence over these Terms and Conditions.
(4) The contractual language is German. The authoritative text shall be that which is written in the German language. Texts in other languages are for information purposes only.
(5) In the online store, the customer can call up and print out the order overview and the General Terms and Conditions. Otherwise, the text of the contract will be stored by the seller in the online store after the conclusion of the contract, but is not accessible to the customer.
(6) The place of jurisdiction is the registered office of CMS Automotive Trading GmbH, as far as the Customer is a merchant, a legal entity under public law or a special fund under public law. The same shall apply if a customer does not have a general place of jurisdiction in Germany or if the customer's place of residence or habitual abode is not known at the time the action is brought.
2. Contents of the contract and conclusion of the contract
(1) The Seller offers its customers new goods for sale in its online store http://shop.cms-wheels.de, in particular rims for motor vehicles. The offers of the seller are directed exclusively to customers in the EU, Switzerland, Norway and UK.
(2) The purchase contract is concluded in the online store as follows:
a) If the customer has chosen the payment method "Prepayment by Sepa Direct Debit", the purchase contract is concluded at the time of the account debit.
b) In other cases, the purchase contract is concluded upon acceptance of the customer's order by the seller. The Seller is entitled to accept the offer contained in the order within 3 working days by sending an order confirmation.
The receipt of the order and the conclusion of the contract will be confirmed to the customer by e-mail.
(3) Before bindingly submitting his order by clicking the button "order subject to payment", the customer can continuously correct all entries using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order and can also be corrected there using the usual keyboard and mouse, or touch screen functions, if applicable.
(4) A customer also has the option to inquire with the seller about a specific item by telephone or by e-mail, fax or letter. Upon receipt of such an inquiry, the Seller shall separately submit an offer to the Customer by e-mail, letter or fax. A contract is only concluded when the customer accepts this offer.
3. Delivery and Transfer of Risk
(1) The ordered goods will be delivered to the address specified by the customer, unless otherwise agreed in the contract. Delivery shall be made exclusively within the countries designated in these General Terms and Conditions, from the Seller's warehouse.
(2) In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Customer upon delivery of the goods to the forwarding agent, the carrier or any other person designated to carry out the shipment.
(3) The availability of the individual goods is indicated in the item descriptions. For goods in stock, the delivery period is 14 calendar days from the conclusion of the contract, unless otherwise stated in the item description (for advance payment by Sepa direct debit: 14 calendar days from the debit of the account by the customer).
(4) The Seller reserves the right to withdraw from the obligation to fulfill the contract if the goods are to be delivered by a supplier on the day of delivery and the delivery is not made in whole or in part. This reservation of self-delivery shall only apply if the Seller is not responsible for the failure to deliver. The Seller shall not be responsible for the non-delivery if a so-called congruent hedging transaction has been concluded with the supplier in due time to fulfill the contractual obligations. If the goods are not delivered, the seller will immediately inform the customer of this circumstance and refund any purchase price already paid as well as shipping costs.
(5) The Seller reserves the right to make a partial delivery, provided that this appears to be advantageous for a speedy processing and the partial delivery is not exceptionally unreasonable for the Customer. Additional costs arising from partial deliveries will not be charged to the customer.
4. Prices, Value Added Tax and Payment
(1) The prices do not include value added tax, shipping and packaging costs. The amount of the shipping costs depends on the weight and dimensions of the goods, type of goods (dangerous goods) as well as the desired destination and the order value.
(2) Delivery to the Customer by the Seller shall be made against advance payment (by issuing a SEPA direct debit mandate) or on account, or by cash payment upon collection.
(3) In the case of delivery on account, payment is due no later than 10 calendar days after invoicing.
(4) If a Customer defaults on its payment obligations, the Seller may claim damages in accordance with the statutory provisions.
(5) The Seller shall always issue an invoice to the Customer, which shall be handed over to the Customer upon delivery of the goods or otherwise received in text form.
(6) We would like to point out that we may transfer data on unpaid receivables to SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden, Germany, and that this data may be taken into account in the determination of probability values (scoring), provided that you have received at least two written reminders after the due date of the receivable, the first reminder was sent at least four weeks ago and you have not disputed the receivable.
5. Retention of Title, Rights of Retention
(1) Until full payment of all present and future claims of the Seller arising from the purchase contract and an ongoing business relationship (secured claims), the Seller retains title to the goods sold.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Customer shall immediately notify the Seller in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) have access to the goods belonging to the Seller.
(3) If the Customer acts in breach of contract, in particular if the Customer fails to pay the purchase price due, the Seller shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; the seller is rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the due purchase price, the seller may only assert these rights if he has previously set the customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
(4) Until revoked, the Customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
• The retention of title shall extend to the products resulting from the processing, mixing or combining of the Seller's goods at their full value, whereby the Seller shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, the latter's right of ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
• The Customer hereby assigns to the Seller by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of the Seller's co-ownership share, if any, in accordance with the preceding paragraph. The Seller accepts the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
• The customer shall remain authorized to collect the claim in addition to the seller. The Seller undertakes not to collect the claim as long as the Customer meets his payment obligations to the Seller, there is no deficiency in his ability to pay and the Seller does not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, the Seller may demand that the Customer informs the Seller of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case the Seller shall be entitled to revoke the Customer's authorization to further sell and process the goods subject to retention of title.
• If the realizable value of the securities exceeds the Seller's claims by more than 10%, the Seller shall release securities of our choice at the Customer's request.
(5) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by the seller. In the event of defects in the delivery, the customer's counter rights shall remain unaffected, in particular his right to retain an appropriate part of the purchase price in relation to the defect. In addition, the customer is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
6. Warranty and Liability
(1) The Seller shall be liable for material defects and defects of title in accordance with the statutory provisions. Defects shall be notified by the customer within a warranty period of 1 year. The shortened warranty period for used goods shall not apply if the seller has fraudulently concealed a defect or has given a guarantee for the quality of the goods, and shall not apply to claims for damages by the customer which are directed towards compensation for physical injury or damage to health due to a defect for which the seller is responsible or which are based on intentional or grossly negligent fault on the part of the seller or his vicarious agents. Otherwise, the Seller shall be liable for material defects and defects of title in accordance with the statutory provisions.
(2) In principle, the Seller shall not be liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the customer's claims for defects presuppose that he has fulfilled his statutory obligations to examine the goods and give notice of defects (§§ 377, 381 HGB). In the case of goods intended for installation or other further processing, an inspection must in any case take place immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later time, the Seller must be notified thereof in writing without delay. In any case, obvious defects shall be notified in writing within 5 working days from delivery and defects not apparent upon inspection within the same period from discovery. If the customer fails to duly inspect and/or notify the defect, the seller's liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
(3) Beyond the liability for material defects and defects of title, the Seller shall be liable without limitation insofar as the cause of the damage is based on intent or gross negligence. He shall also be liable for the slightly negligent breach of essential obligations (obligations whose breach endangers the achievement of the purpose of the contract) as well as for the breach of cardinal obligations (obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies), but in each case only for the foreseeable damage typical for the contract. The Seller shall not be liable for the slightly negligent breach of obligations other than the aforementioned.
(4) The limitations of liability of the preceding paragraph shall not apply in case of injury to life, body and health, for a defect after assumption of a guarantee for the quality of the product and for fraudulently concealed defects. Liability under the Product Liability Act shall remain unaffected.
(5) If the Seller's liability is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
(6) In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier's recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by incorporation into another product.
7. Data protection