General Terms and Conditions of YOKOHAMA Reifen GmbH for the Sale and Delivery of goods

1. Applicability

1.1. Save as otherwise agreed upon in writing, these General Terms and Conditions (hereinafter referred to as “GTC”) shall apply exclusively for all present and future contractual relations between YOKOHAMA Reifen GmbH (hereinafter referred to as “Yokohama”, “we”, “us”) as the seller and the customer who acts in the exercise of his commercial or self-employed professional activity when concluding the purchase (within the meaning of § 14 BGB), thus being an entrepreneur (hereinafter referred to as “Purchaser”, Yokohama and the Purchaser together hereinafter referred to as the “Parties").

1.2. These GTC shall be made available by us to the Purchaser according to the modalities normally in use between the Parties including by means of their publication on our website. Such modalities shall apply to any future amendments of these GTC executed by Yokohama at any time.

1.3. These GTC shall apply exclusively. Differing or contrary terms and conditions of the Purchaser shall not apply and shall not become part of the contract even if we do not expressly object to them, execute the contract without reservations and/or if the terms and conditions are included in an order confirmation subsequent to our order or assignment. Special agreements and collateral agreements require the written consent of Yokohama.

2. Offer and Conclusion of the contract

Yokohama’s offers are not legally binding. A contract shall only be deemed concluded, if Yokohama confirms an order by the Purchaser in writing, by telephone, email of fax. The delivery of the ordered goods to the Purchaser is equivalent to an order confirmation.

3. Subject of Delivery

3.1. Yokohama shall be entitled to partial deliveries.

3.2. Information on goods and performance specifications regarding items to be delivered by Yokohama are not binding unless expressly confirmed by us in writing. In case of doubt, the information and specifications in the written order confirmation shall apply. Quality specifications shall only be deemed to be independent guarantees if this has been expressly declared by Yokohama.

3.3. We reserve the right to modify the design and construction of our goods which we consider appropriate due to technical progress or at our discretion, provided that the change is not unreasonable for the Purchaser. Minor deviations from dimensions and weights specified in our brochures or lists of goods and in case of custom-made products, are permissible if these deviations do not exceed 10% and do not impair the suitability of the delivery item for the intended purpose.

3.4. Insignificant deviations from the agreed quality as well as insignificant impairment of the usability of the delivered goods are permitted and are not deemed to be a defective performance.

4. Delivery dates

4.1. Yokohama shall always endeavor to comply with the periods indicated and scheduled dates in the order confirmation. The Purchaser may set us a reasonable delivery grace period of not less than two weeks, in case of container goods of not less than four weeks, in writing after such originally indicated periods or dates have been exceeded. Only after expiry of this grace period shall the Purchaser be entitled to set a deadline for subsequent performance; a refusal to perform after expiry of this period must have been expressly threatened to us in advance. Further claims for damages due to default or discontinuation of the obligation to perform shall be governed by Sec. 9 (Limitation of Liability) of these GTC.

4.2. We shall not be deemed to be in default if the Purchaser is in default with the fulfillment of his obligations towards us.

5. Packaging, shipping and passing of risk

5.1. Yokohama shall be responsible for the choice of packaging material and packaging.

5.2. We reserve the right, at our discretion, to deliver carriage paid by post, carriage paid to any German railroad station or carriage paid by any other customary means. If the Purchaser wishes accelerated shipment (e.g. air freight express), he shall bear the difference between the costs for freight and the higher expenses. Shipping charges shall be borne by the Purchaser. No compensation shall be granted for self-collection. Notwithstanding the aforementioned, the Purchaser shall bear the costs of delivery.

5.3. The risk of accidental loss or accidental deterioration shall pass to the Purchaser upon delivery of the goods to the person responsible for shipment, but no later than upon leaving one of our warehouses, irrespective of whether the shipment is dispatched from the place of performance and who bears the freight costs.

5.4. If the shipment is delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser from the day the goods are ready for shipment. Expenses due to the delay shall be borne by the Purchaser. Goods indicated as ready for shipping, transport or collection and goods that have not been collected, may at the sole discretion of Yokohama be stored and invoiced as if they would have been delivered by Yokohama at the Purchaser’s expense and risk.

5.5. The Purchaser shall acknowledge receipt of the goods exclusively on our delivery bills accompanying the goods or on shipping documents of parcel services or other transport companies, with stamp, date of receipt and signature.

5.6. A return of contractually delivered goods is generally excluded. In exceptional cases and without acknowledgement of a legal obligation by Yokohama, we may take back goods in defect-free condition at the purchase price and we are entitled to charge a lump sum for the costs incurred by the return in the amount of 10% of the purchase price. The credit note for the return of goods will be issued taking into account all condition components after a positive result of our quality inspection.

6. Prices and payment

6.1. All prices quoted are exclusive of statutory value added tax (VAT). Delivery and invoicing are effected at the total prices (list price and VAT) and conditions valid at the time of dispatch or collection of the ordered goods.

6.2. The invoices of Yokohama are to be paid free of postage and expenses. The invoices are immediately due for payment. In the event of non-compliance with a payment date stated on the invoices or delivery bills (date giving rise to default), the statutory default interest shall be reimbursed by the Purchaser. The right to claim further damage caused by default shall not be affected by this provision. The prior notice of default by means of a reminder remains unaffected by this provision. Yokohama reserves the right in each case to set off incoming payments against the oldest claim plus the interest accrued thereon as well as costs incurred.

6.3. If a SEPA direct debit procedure has been agreed with the Purchaser, we shall be entitled to notify the Purchaser of the pre-notification up to three working days before the respective direct debit.

6.4. If the Purchaser is in default of a due payment or if Yokohama has reasonable doubts about the Purchaser's solvency, Yokohama may demand payment of all outstanding payments for goods already delivered. Doubts about the solvency of the Purchaser exist in particular if return debit notes have been made, checks or bills of exchange have not been honored, enforcement measures have been unsuccessful, the Purchaser has been requested to make a statement of assets or the opening of insolvency proceedings has been applied for. The delivery period for all goods ordered but not yet delivered shall be extended in this case until all outstanding invoices have been paid in full. We are also entitled at our sole discretion to demand a sufficient security for our claims.

6.5. The Purchaser shall only be entitled to set-off against our payment claims or to exercise rights of retention as the Purchaser’s claims against Yokohama are undisputed or have been finally determined by a court of law.

7. Retention of title

7.1. All goods delivered by Yokohama will remain the property of Yokohama until fulfillment of all claims of Yokohama, including all future claims arising from the contractual business relations with the Purchaser regardless of the reason and including any current account credit claims (goods subject to retention of title). In the case of current invoices, the retention of title shall serve as security for the balance claim of Yokohama.

7.2. The Purchaser shall be entitled to resell the goods subject to retention of title in the ordinary course of business. The right to resell is revocable if the Purchaser is in default or agrees with his customers on the unassignability of payment claims against them.

7.3. The Purchaser's claims for payment against his customers from a resale of the goods subject to retention of title as well as those claims of the Purchaser with regard to the goods subject to retention of title which arise for any other legal reason against his customers, are hereby assigned already in advance to Yokohama by the Purchaser in full by way of security, regardless of whether these goods are resold alone or together with other items. In the latter case, the claim assigned to Yokohama comprises the amount of the value of the goods subject to retention of title. Yokohama hereby accepts this advance assignment.

7.4. If a current account agreement is agreed upon between the Purchaser and its customer(s), the respective current account balance claim in favor of the Purchaser is hereby assigned to Yokohama, up to the amount of our outstanding claims against the Purchaser.

7.5. The claims assigned to us shall serve as security for all of our claims against the Purchaser, including those arising in the future.

7.6. The Purchaser is authorized to collect the assigned claims if and as long as he properly fulfills his payment obligations. If the Purchaser does not properly fulfill his payment obligations, the Purchaser is obliged to inform his customers of the assignment to Yokohama and to provide Yokohama with all necessary details on the assigned claims and their debtors required for the collection of the claims, as well as to provide all necessary documents for this purpose.

7.7. The retention of title shall also extend to the full value of such products resulting from the processing, mixing or a combination of our goods. Processing and transformation shall always be carried out on behalf of Yokohama under the exclusion of the acquisition of ownership by the processor in accordance with § 950 of the German Civil Code (BGB), but without any obligation for Yokohama. In the event of processing with other goods not belonging to Yokohama conducted by the Purchaser, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the value of the other goods at the time of processing. If the goods subject to retention of title are combined or mixed with other goods in accordance with §§ 947, 948 of the German Civil Code (BGB), Yokohama shall become co-owner pursuant to the statutory provisions. If the Purchaser acquires sole ownership by combining or mixing, the Purchaser hereby assigns to Yokohama co-ownership in the ratio of the value of the goods subject to retention of title to the value of the other goods at the time of combining or mixing. Yokohama hereby accepts this transfer of ownership in advance. The Purchaser shall store the goods in our (joint) ownership free of charge.

7.8. If the Purchaser intends to assign claims from the resale in the course of factoring, he shall inform Yokohama in advance. An assignment in the course of factoring is only permitted if Yokohama has expressly agreed to it in writing.

7.9. Pledging or assignment by way of security of the goods owned by Yokohama is not permitted.

7.10. In the event of insolvency proceedings, the Purchaser is obliged to inform each and every third party that the goods are the property of Yokohama, by way of labelling or in any other suitable way. In case of an own insolvency application by the Purchaser, this marking shall be carried out prior to the filing of the application; in the case of a creditor's application, this marking shall be carried out immediately after the debtor - i.e. the Purchaser - has been heard. The same applies in the case of seizure measures of third parties against the Purchaser. Yokohama shall be informed immediately upon the occurrence of such an event.

7.11. As long as a claim exists in favor of Yokohama, Yokohama shall be entitled at any time to demand information from the Purchaser which goods delivered subject to retention of title are still in the Purchaser’s possession and where these goods are located. Furthermore, the Purchaser is obliged to inform Yokohama immediately of any changes in the place of custody, stating the new place of custody. Yokohama shall also be entitled to inspect such goods at these places at any time after prior notice.

7.12. In the event of a breach of contract by the Purchaser, in particular in the event of default in payment, we shall be entitled to withdraw from the contract after issuing a reminder. The purchaser is then obliged to surrender the goods. The right to claim damages for non-performance shall remain unaffected by the withdrawal. However, we will try to sell the returned goods in the best possible way after prior notification.

7.13. The Purchaser shall be obliged to carefully store the goods subject to retention of title and to sufficiently insure them against fire, water and theft at his own expense. The Purchaser hereby assigns to Yokohama its claims against the insurance company in the event of damage and in the amount of the damage to our goods subject to retention of title. Yokohama hereby accepts this assignment.

7.14. At the written request of the Purchaser, we shall be obliged to transfer our property, the property subject to retention of title as well as other assets of security, to the extent that the realizable value of the goods subject to retention of title and the other securities exceed the respective total sum of our claims against the Purchaser by more than 10%.

8. Liability for defects

8.1. The purchaser shall carefully inspect the goods immediately upon receipt and notify Yokohama of any defect. The notification of defects must be made immediately. Later notifications of defects that could have been discovered during careful inspection after receipt of the goods are deemed to be irrelevant and do not justify a claim by the Purchaser. Defects that could not have been discovered despite careful inspection must be reported immediately after discovery. Also in this case failure to notify the defect without delay shall render the notification of defect irrelevant.

8.2. Deviating delivery quantities are to be noted on the delivery or shipping documents. Defects in the packaging are irrelevant as long as they do not impair the suitability of the goods.

8.3. Under the condition of timely and complete notification of defects, the recourse of Purchasers supplied directly by Yokohama is merely permitted with regard to such newly manufactured tires, which are made available to Yokohama’s quality assurance department for inspection.

8.4. In the event of justified notifications of defects, Yokohama shall be obliged to refund the purchase price, to remedy the defect or to deliver defect-free replacement goods within four weeks after receipt of the defective goods. The right to choose the type of subsequent performance shall in any case be at our discretion. In the event of withdrawal or subsequent delivery Yokohama is entitled to charge the end-customer who is not a consumer but an entrepreneur (within the meaning of § 14 of the German Civil Code (BGB)) with a deduction corresponding to the degree of wear and tear of the defective tire; the aforementioned right to claim a deduction shall not apply if the respective object is deteriorated due to being used in accordance with its intended use, and further, if the deterioration occurred although the end-customer showed the care that he customarily exercises in his own affairs.

8.5. Upon the warranty performance, the defective item shall become the property of Yokohama. Recourse is excluded if the warranty obligation of the Purchaser is based on a guarantee obligation of the Purchaser that exceeds the statutory warranty obligations for defects. Warranty claims shall become statute-barred upon expiration of two years after delivery to the Purchaser’s end-customer/consumer but no later than upon expiration of five years after delivery to the Purchaser.

8.6. 

a) if the claimed defective tire is not presented to Yokohama;

b) if the material defect is due to actions of the Purchaser or its vicarious agents or if the Purchaser or its vicarious agents have performed the assembly improperly;

c) insofar as the Purchaser's obligation to the end-customer is based on a guaranty obligation of the Purchaser that exceeds the statutory warranty obligations for defects;

d) insofar as improper interventions and repairs, retreading or processing in any other way have been carried out on our products by any party other than Yokohama;

e) if the tire inflation pressure recommended by us or by the original equipment manufacturer/vehicle manufacturer or the standard tire inflation pressure has not been complied with and this had caused the defect;

f) if the tire became defective because it has been subjected to unreasonable stress, such as by exceeding the permissible load and the respective maximum permitted speed or has been in rally and/or racing use without the explicit approval by Yokohama;

g) if the tire became defective due to incorrect wheel positioning or if its performance was impaired due to other faults in the wheel arch (e.g. dynamic imbalance) or if it was retreaded by a third party;

h) if the tire was mounted on a rim not assigned to it, ungauged, rusty or otherwise defective;

i) if the tire has been damaged by external impact or mechanical damage or has been exposed to external heating which caused the defect;

j) if there is natural wear and tear or damage that is generally due to improper handling, e.g. improper profile changes, indentations, etc., or due to an accident;

k) if the tire shows damage related to the application of spikes, squats, etc. by any third party;

l) if the tyres have been modified within the meaning of Sec. 10 (Product changes) of these GTC.

The aforementioned provisions shall not be interpreted as a shift of the burden of proof.

8.7. Damages claims for defects shall only be payable subject to the provisions of Sec. 9 of these GTC.

9. Limitation of liability

9.1. Yokohama shall only be liable for damages claims, irrespective of their legal nature, including, in particular, breach of contractual duty or tort, in the following cases:

a) wilful misconduct;

b) death or personal injury;

c) failure to fulfil an expressly assumed guaranty;

d) if in other cases legal provisions provide for liability regardless of negligence or fault;

e) gross negligence; and/or

f) to the extent liability has not already occurred in accordance with section 9.1 a) to e), in case of a breach of a Material Duty (wesentliche Vertragsverletzung);

Apart from that, our liability is excluded.

A "Material Duty" within the meaning of the present agreement shall be (i) any contractual duty protecting an essential contractual position of the Purchaser, the granting of which position is an essential aim and purpose of the agreement, and/or (ii) any contractual duty the fulfilment of which is a basic requirement enabling the proper performance of the agreement in the first place and in the fulfilment of which the Purchaser may usually trust.

9.2. In the case of section 9.1 d) to f), Yokohama shall only be liable for the typical and foreseeable damage.

9.3. The exclusions or limitations of liability, pursuant to sections 9.1 to 9.2, shall also apply to the same degree in relation to any acts of Yokohama’s legal representatives, executive and non-executive employees and other vicarious agents as well as subcontractors. Yokohama does not assume any liability for employees or other auxiliary persons who are engaged in the performance of Yokohama’s contractual duties by the Purchaser and the Purchaser shall indemnify Yokohama against all expenses and claims by any third party for damages of such persons. This shall not apply in case these persons are deemed to be auxiliary persons of Yokohama.

9.4. The aforementioned provisions shall not be interpreted as a shift of the burden of proof.

9.5. We shall not be liable for failure to fulfil any of our obligations in case the failure is caused by circumstances beyond our control (force majeure) (in particular, but not conclusively in the event of industrial action, official measures, such as import or export restrictions, operational or traffic disruptions, fire, floods, water damage, piracy and shortages of energy or raw materials, pandemics). During force majeure our obligation to fulfil our obligations shall be suspended. The delivery period or grace period shall be extended by the duration of the delay without further ado following corresponding notification by Yokohama. In the event that the performance of our contractual obligations is made impossible by force majeure for a period longer than thirty days, each party shall be entitled to withdraw from the agreement without judicial intervention and without any obligation whatsoever to compensate the damages of the Purchaser.

9.6. The Purchaser’s statutory liability shall remain unaffected.

10. Product changes

10.1. The Purchaser is obliged to resell the products of Yokohama to third parties as classified by Yokohama. The Purchaser shall further explain the exact nature of technical details of these goods to its customers.

10.2. The products of Yokohama which have been modified since delivery, in particular whose serial numbers have been gringed out or whose quality has been reduced, must not be used in road traffic or delivered to third parties.

11. Privacy

The Purchaser is informed that, if applicable, personal data will be stored and processed by Yokohama in accordance with the provisions of the DSGVO. Our applicable privacy policies and information documents are made available in separate documentation.

12. Final Provisions

12.1. The place of performance and exclusive place of jurisdiction for all disputes arising out or in connection with this contract shall be Düsseldorf. However, Yokohama shall also be entitled to sue the Purchaser at any other legal place of jurisdiction.

12.2. These GTC and any agreement deriving herefrom shall be governed exclusively by the laws of the Federal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Good).

12.3. In addition to this English language version of these GTC, these GTC might also be available in other languages for information purposes. In the event of any inconsistency between this English version and the other version of these GTC, the English version shall prevail.

12.4. Should individual provisions of these GTC be or become invalid or void in whole or in part, this shall not affect the validity of the rest of these GTC. The Parties undertake to replace the invalid or void provision with a valid provision that comes as close as possible to the intended economic purpose. The same shall apply in the event of a loophole.