General Terms and Conditions of Kultour GmbH

Status 01.04.2024

I. Scope of application, definitions

1. The business relationship between the company Kultour GmbH (hereinafter: ‘Kultour’) and the customer (hereinafter: ‘customer’) is governed exclusively by the following General Terms and Conditions (GTC) in their current version.

2. Deviating general terms and conditions of the customer are not recognised by Kultour unless Kultour expressly agrees to their validity within two weeks.

3. If the contracting parties have reached agreements in individual cases, these take precedence over the GTC.

II. Conclusion of contract | transfer of rights and obligations of the customer

1. The customer is bound to the order for a maximum of 6 weeks.

2. The contract is concluded when Kultour confirms acceptance of the order for the specified object of purchase in writing within this period or hands over the goods to the customer.

3. However, Kultour is obliged to inform the customer in writing of any rejection of the order immediately after clarification of the deliverability.

4. All agreements must be set out in writing. This also applies to collateral agreements and assurances as well as to subsequent amendments to the contract.

5. Transfers of rights and obligations of the customer arising from the contracts concluded with Kultour require the written consent of Kultour.

III. Prices

1. The price of the object of purchase is ex works Germany plus transport costs. Agreed additional services shall be charged additionally.

2. If the customer is a legal entity under public law, a special fund under public law or a merchant for whom the contract is part of the operation of his commercial business, the list prices of Kultour GmbH applicable on the day of conclusion of the contract plus VAT are agreed as the purchase price.

IV. Payments and default of payment

1. The purchase price is due for payment upon handover of the object of purchase - at the latest, however, 8 days after receipt of the notification of availability and handover or transmission of the invoices or another settlement document.

2. The customer can only offset against the claims of Kultour if the counterclaim of the customer is undisputed or a legally binding title exists. The customer can only assert a right of retention if it is based on claims from the same contract.

3. If the customer is in arrears with payments - in the case of agreement of part payments with two consecutive instalments - Kultour may, without prejudice to its rights under Section VI, Clause 3, set the customer a grace period of 14 days in writing with the declaration that after expiry of this period the fulfilment of the contract by the customer will be rejected. After the unsuccessful expiry of the grace period, Kultour is entitled to withdraw from the contract by written declaration or to demand compensation.

4. Interest on arrears is charged at 4% p.a. above the discount rate of the Deutsche Bundesbank. Kultour can demand higher interest if it can prove that it has been charged a higher interest rate.

V. Delivery and delay in delivery

1. Delivery dates or delivery periods, which can be agreed as binding or non-binding, must be stated in writing by Kultour. Delivery periods begin with the conclusion of the contract. If changes to the contract are subsequently agreed, a new delivery date or a new delivery period must be agreed at the same time if necessary.

2. 6 weeks after exceeding a non-binding delivery date or a non-binding delivery period, the customer can request Kultour in writing to deliver within a reasonable period. With this reminder, Kultour is in default.

3. In addition to delivery, the customer can only demand compensation for the damage caused by delay if Kultour is guilty of intent or gross negligence. In the event of default, the customer can also set a reasonable grace period in writing, stating that he will refuse to accept the goods after the expiry of the grace period. After unsuccessful expiry, the customer is entitled to withdraw from the contract by written declaration or to demand compensation for non-fulfilment. In the event of slight negligence, this shall be limited to a maximum of 10 % of the consideration.

4. If the customer is a legal entity under public law, a special fund under public law or a merchant for whom the contract is part of the operation of his commercial business, he is only entitled to a claim for damages in the event of intent or gross negligence on the part of Kultour. The claim for delivery is excluded in the cases of this paragraph. If delivery becomes impossible for Kultour by chance during the delay, Kultour is nevertheless liable in accordance with paragraphs 1 and 2, unless the damage would have occurred even if delivery had been made on time.

5. If a binding delivery date or a binding delivery period is exceeded, Kultour is already in default when the delivery date or the delivery period is exceeded.

6. Force majeure or operational disruptions occurring at Kultour or its suppliers, such as riots, strikes, lockouts, interruption of supply chains, pandemics, etc., which temporarily prevent Kultour, through no fault of its own, from delivering the goods on the agreed date or within the agreed period, alter the dates and periods referred to in clauses 1 and 2 of this section by the duration of the disruption of performance caused by these circumstances.

7. The manufacturer reserves the right to make changes in design or shape, deviations in colour and changes in the scope of delivery during the delivery period, provided that the goods are not substantially changed and the changes are reasonable for the customer.

8. If Kultour or the manufacturer uses signs or numbers to designate the order or the goods ordered, no rights can be derived from this alone.

9. If, during the term of the delivery period, the customer requests any changes in the design or in the scope of delivery or if he does not fulfil his contractual obligations punctually on the due date, the term of the delivery period will be interrupted; Kultour is not responsible for any delays in delivery resulting from this.

10. Kultour is entitled to make partial deliveries.

VI. Acceptance

1. The customer has the right to inspect the goods at the agreed place of acceptance within 8 days of provision and the obligation to accept them within this period.

2. If the goods offered show considerable defects which are not completely remedied within 8 days after notification of defects within the period specified in clause 1 of this section, the customer may refuse acceptance.

3. If the customer intentionally or through gross negligence remains in arrears with the acceptance of the goods for more than 14 days from receipt of the notification of availability, Kultour may set the customer a written grace period of 14 days with the declaration that Kultour will refuse acceptance after expiry of this period. After the unsuccessful expiry of the grace period, Kultour is entitled to withdraw from the contract by written declaration or to claim damages. The provision and setting of a grace period is not required if the customer seriously and definitively refuses acceptance or is obviously unable to pay the purchase price even if a grace period is granted.

4. If Kultour demands compensation, this amounts to 15% of the purchase price. The amount of damages is to be set higher if Kultour proves higher damages. The amount of damages is to be set lower if the customer proves lower damages.

5. If Kultour does not exercise the rights under clauses 3 and 4, Kultour may freely dispose of the goods and deliver a similar item in its place within a reasonable period of time under the terms of the contract.

VII. Retention of title

1. The goods remain the property of Kultour until full payment of all claims arising from the concluded contract.

2. For the duration of the retention of title, the customer is entitled to possess and use the goods as long as he fulfils his obligations under the following provisions of this section and is not in default of payment. If the customer is in default of payment or does not fulfil his contractual obligations, Kultour can demand the return of the goods from the customer and, after giving written notice with a reasonable period of notice, realise the goods by private sale at the best possible price, offsetting the realisation proceeds against the claim. In the case of instalment transactions of a customer who is not registered as a merchant in the commercial register, the demand for surrender is deemed to be a declaration of withdrawal with cancellation of the instalment transaction.

3. If Kultour demands the return of the goods, the customer is obliged to return the goods to Kultour without undue delay to the exclusion of any rights of retention - unless it concerns objections arising from the same contract.

4. The customer shall bear all costs of taking back and realising the goods. The realisation costs amount to 10% of the realisation proceeds without proof. They are to be set higher if Kultour proves costs; they are to be set lower if the customer proves lower costs. The proceeds will be credited to the customer after deduction of the costs and other claims associated with the contract.

5. As long as the retention of title exists, a sale, pledging, transfer by way of security or other transfer of the goods impairing the security as well as their modification is only permitted with the prior written consent of Kultour.

6. For the duration of the retention of title, Kultour is entitled to the right of possession of the registration certificate II (vehicle registration document). The customer is obliged to apply in writing to the registration office for the registration certificate II to be handed over to Kultour.

7. In the event of seizure by third parties, in particular in the event of seizure of the goods or the exercise of the entrepreneur's lien of a garage, the customer must notify Kultour immediately in writing and inform the third party without delay of the retention of title.

8. The customer is obliged to keep the goods in proper condition for the duration of the retention of title.

VIII. Warranty, material defects

1. The warranty period is one year from handover or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, limb or health or from wilful or grossly negligent breaches of duty by Kultour or its vicarious agents, which in each case become time-barred in accordance with the statutory provisions.

2. The delivered items are to be carefully inspected immediately after handover to the customer or to the third party designated by the customer. With regard to obvious defects or other defects that would have been recognisable in an immediate, careful inspection, they are deemed to have been approved by the customer if Kultour does not receive a written notice of defects within seven working days of handover. With regard to other defects, the delivery items are deemed to be approved by the customer if the notice of defects is not received by Kultour within seven working days after the time at which the defect became apparent. However, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time is decisive for the start of the period for giving notice of defects.

3. In the event of defects in the delivered goods, Kultour is initially obliged and entitled, at its discretion and within a reasonable period of time, to repair or replace the goods. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately. If a defect is due to the fault of Kultour, the customer can demand compensation.

4. In the case of defects in components of other manufacturers which Kultour cannot remedy for reasons of licence law or factual reasons, Kultour will, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against Kultour exist for such defects under the other conditions and in accordance with these General Terms and Conditions of Delivery only if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the customer against Kultour is suspended.

5. The warranty does not apply if the customer modifies the delivery item or has it modified by a third party without the consent of Kultour and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer must bear the additional costs of remedying the defect resulting from the modification.

6. Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects.

IX. Data protection, data storage and processing

1. The customer agrees to the collection, storage, processing and use of his data, including his personal data, for the purpose of concluding and executing the contract.

2. The customer can revoke consent at any time with effect for the future and has the rights to information, deletion and correction in accordance with the GDPR.

X. Place of fulfilment and place of jurisdiction

1. The place of fulfilment is the registered office of Kultour, unless expressly agreed otherwise.

2. The law of the Federal Republic of Germany applies.

3. The exclusive place of jurisdiction for all present and future claims arising from the business relationship with registered traders is Münster.

4. The same place of jurisdiction applies if the customer does not have a general place of jurisdiction in Germany, moves his domicile or usual place of residence out of Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is filed. Otherwise, the place of jurisdiction for claims by Kultour against the customer is the customer's place of residence.

5. Should one or more provisions of this contract be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions and the validity of this contract as a whole will not be affected. In place of the invalid or unenforceable provision, a provision shall be deemed to have been agreed which, as far as legally possible, comes as close as possible in terms of place, time, extent and scope of application to what was intended by the contracting parties in economic terms in accordance with the original meaning and purpose of the invalid provision. The same applies to any loopholes in this contract.