General Terms and Conditions of Sale, Delivery and Repair of RedCar Manufaktur GmbH

§ 1 Scope of Application

(1) All deliveries, services, offers, licence grants and licence agreements, as well as workshop services provided by RedCar Manufaktur GmbH (hereinafter referred to as “RedCar”), are exclusively subject to these terms and conditions. They shall also apply to all future business relationships, even if they are not expressly agreed again.

(2) These terms and conditions apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) (B2B) and to consumers within the meaning of Section 13 BGB (B2C). Where clauses in these terms and conditions are marked “[B2B]”, they apply exclusively to entrepreneurs. For consumers, the statutory provisions shall apply unless these terms and conditions provide for a more favourable arrangement.

(3) Any deviating general terms and conditions of the customer, in particular purchasing terms and conditions, are hereby rejected. They shall not become part of the contract even if RedCar does not expressly object to them again. Deviations from these terms and conditions shall only become effective if confirmed in writing by RedCar.

§ 2 Acknowledgement and Acceptance

(1) The customer acknowledges these terms and conditions by taking note of them when concluding the contract.

(2) [B2B] The customer also acknowledges these terms and conditions by opening secured packaging, breaking licence seals or breaking seals attached to the product, even if the customer only becomes aware of them upon delivery or performance. In the case of services provided by RedCar involving the delivery, modification or adaptation of computer or control unit data and the testing thereof, with or without hardware modifications, the customer expressly also acknowledges the licence provisions contained in these terms and conditions and undertakes to comply with them.

§ 3 Offers and Acceptance

(1) Offers made by RedCar are non-binding. The customer shall be bound by their order or commission for a period of 4 weeks. The declaration of acceptance by RedCar shall only become effective upon written or electronic confirmation. This shall also apply to amendments, additions and ancillary agreements. These shall only become effective if confirmed in writing by RedCar.

(2) The content of the contract shall be determined by the offer, the written order confirmation and these terms and conditions. Delivery and/or invoicing shall replace the written order confirmation by RedCar.

(3) Due to the special nature of RedCar’s services, the customer’s placement of an order also includes authorisation to carry out test drives with the customer’s vehicle within a radius of 50 km around the workshop location in order to check the work performed.

§ 4 Illustrations, Descriptions and Other Information; Copyrights

(1) Only those properties and characteristics of RedCar’s goods and services that are specified in RedCar’s offer or order confirmation shall form part of the agreed condition. Other or more extensive information regarding properties and characteristics shall generally not constitute contractual specifications. They shall only form part of the agreed condition if RedCar has expressly agreed them as such with the customer. Such agreements on condition shall be recorded in writing.

(2) Illustrations and descriptions in offers, brochures and publications by RedCar are used for general clarification and, as technical data, may be subject to changes, as RedCar is always endeavouring to further develop its products in the interests of the customer and in line with technical progress. RedCar therefore reserves the right to make deviations from illustrations and descriptions, to apply customary industry tolerances to quality and dimensional specifications, to correct printing errors and mistakes, and to make product changes serving technical progress. Dimensions and weight specifications in such illustrations, descriptions and planning documents are generally non-binding; this shall not apply if the deviations are unreasonable for the customer.

(3) Statements made by RedCar that go beyond a description of condition within the meaning of the preceding paragraph and that relate to certain properties and characteristics of its goods and services shall only constitute a guarantee of condition within the meaning of Section 443 BGB if the statement relates to the condition (a property) and RedCar declares that it intends to assume binding liability for that condition irrespective of fault. Such statements shall be recorded in writing.

(4) RedCar reserves ownership and copyright in all documents such as offers, illustrations, drawings, construction drawings, cost estimates and similar materials made available to the customer or prospective customer. These may only be used for the contractually agreed purpose and may only be made accessible to third parties with the express consent of RedCar. The documents shall be returned without delay upon request or if the order is not placed.

(5) In the case of conversions, installations or modifications manufactured according to specifications, drawings or sketches provided by the customer, RedCar shall not be liable for any infringement of third-party intellectual property rights. If RedCar is held liable by third parties for this reason, the customer shall indemnify RedCar in full against such claims.

§ 5 Prices and Terms of Payment

(1) Prices are net prices ex works at RedCar’s registered office, plus packaging, shipping and transport insurance costs, as well as statutory VAT. The prices applicable on the date of conclusion of the contract shall be decisive. If more than 4 months elapse between conclusion of the contract and the delivery date, the list price applicable on the date of delivery shall apply. Additional services and deliveries shall be charged at RedCar’s prices valid at the time the contract is concluded. The prices and calculation principles displayed in RedCar’s workshop shall apply to the use of the dynamometer.

(2) [B2B] If and to the extent that the customer is an entrepreneur, RedCar reserves the right to pass on to the customer any cost increases of more than 3% in purchasing and/or manufacturing, insofar as RedCar is not responsible for them. This applies in particular where RedCar must obtain goods from third parties and the price increase was unforeseeable for RedCar or is based on measures taken by public authorities (e.g. punitive tariffs).

(3) Unless advance payment has been expressly agreed and no other arrangement has been made, invoices issued by RedCar shall be due for payment 10 days after the invoice date. From the due date, the customer shall owe, insofar as the customer is an entrepreneur, default interest pursuant to Section 353 of the German Commercial Code (HGB) at the statutory rate set out in Section 352(1) HGB.

(4) In the event of default in payment, RedCar shall be entitled to charge interest at the respective statutory rate pursuant to Section 288 BGB and, in the event of debt collection, a lump sum of EUR 40.00, unless RedCar or the customer proves that the actual damage caused by default was higher or lower. The aforementioned interest rate may be charged without presentation of an interest certificate from RedCar’s principal bank. If the customer fails to make payment within a reasonable grace period, RedCar may exercise its rights under Section 326 BGB, in particular claim damages for non-performance. In all cases, the amount of damages shall be 10% of the agreed remuneration, unless RedCar proves higher damages or the customer proves lower damages. In addition, RedCar shall have the right to choose whether to claim the outstanding agreed remuneration as damages or to demand the return of the purchased item.

(5) [B2B] If a risk to payment claims of RedCar becomes apparent due to the customer’s lack of financial capacity, RedCar shall be entitled to declare all claims arising from the entire business relationship with the customer that are not yet due immediately payable, provided that RedCar has already performed its services. This shall also apply if RedCar has already accepted cheques or bills of exchange. RedCar may require advance payment for future services that have not yet been performed. A risk within the meaning of these provisions exists if information from a bank or credit agency indicates that the customer is not creditworthy.

(6) The customer may only set off claims that are undisputed or have been established by a final court decision; this shall also apply to the assertion of rights of retention. [B2B] Any assignment of claims against RedCar shall be prohibited.

§ 6 Acceptance of Work and Deliveries

(1) Acceptance shall take place following a joint visual inspection by the customer when collecting the vehicle or contractual item from RedCar’s workshop. The customer may only report defects that are apparent during the visual inspection within 3 days of collection, specifying the defects in question.

(2) The customer shall be in default of acceptance if they do not collect the vehicle or contractual item within 8 days after notification that the work has been completed. If a vehicle or contractual item is not collected after expiry of this period, RedCar may charge the customary local storage fees for the vehicle or contractual item as storage charges pursuant to Section 304 BGB.

§ 7 Delivery and Performance Deadlines

(1) Delivery and performance dates and periods stated in RedCar’s offers and order confirmations are generally non-binding. The periods shall commence upon dispatch of the order confirmation, but not before the documents, permits, approvals and information required from the customer for processing the order have been provided, nor before receipt of any agreed advance payment. Even if a specific delivery period has exceptionally been agreed, RedCar shall only be in default of delivery after having been reminded and after an additional period of at least 4 weeks set by the customer has expired without result. In the event of subsequent contractual amendments, any delivery period shall be adjusted accordingly. The deadlines shall be deemed to have been met if dispatch has taken place or notification of readiness for delivery or performance has been given before their expiry.

(2) RedCar shall only be in default with completion and/or delivery if it is responsible for the delay. Technically necessary changes to shape or design are reserved, provided that the vehicle or contractual item is not thereby changed in a manner that is unreasonable for the customer. Cases of force majeure (unforeseeable circumstances and events for which RedCar is not responsible and which could not have been avoided even with the diligence of a prudent businessperson) shall suspend RedCar’s delivery and performance obligations for the duration and to the extent of their effects, even if RedCar is already in default. If RedCar has concluded a timely and corresponding covering transaction with upstream suppliers, the delivery dates stated by RedCar shall be subject to timely and proper delivery to RedCar by those suppliers.

(3) In cases of force majeure or failure to obtain timely and proper delivery from upstream suppliers, RedCar shall be entitled to withdraw from the contract if RedCar has informed the customer without delay of the occurrence of force majeure or of the late or improper delivery by upstream suppliers and has promptly refunded any consideration already received from the customer.

(4) If RedCar fails to meet agreed delivery periods, the customer shall set RedCar a reasonable additional period for performance. If this additional period expires without result, the customer may withdraw from the contract. [B2B] The customer’s claims for damages due to delayed delivery are excluded unless there is intent or gross negligence or essential contractual obligations have been breached.

(5) [B2B] In the event of failure to accept delivery and/or failure to fulfil the contract, or in the event of withdrawal from the contract, the customer shall pay RedCar lump-sum damages amounting to 10% of the net contract value. The customer shall remain entitled to prove that the damage was lower. Notwithstanding the agreement on lump-sum damages, RedCar shall not be prevented from proving and claiming higher damages.

§ 8 Delivery, Dispatch and Transfer of Risk

(1) The risk of accidental loss or accidental damage to the contractual item shall pass to the customer at the point in time at which RedCar hands the contractual item over to the first carrier for delivery to the customer. If the contractual item is ready for dispatch and dispatch is delayed for reasons for which RedCar is not responsible, the risk shall pass to the customer upon receipt of the notification that the item is ready for dispatch. The transfer of risk shall take place accordingly even if RedCar carries out the transport, assumes other obligations to be performed at the place of delivery or bears the transport costs. At the customer’s request and expense, RedCar shall be obliged to take out any insurance requested by the customer.

(2) If RedCar assists with loading and/or unloading the contractual item or otherwise participates in its transport (signing insurance policies, handling customs formalities, etc.), this shall be done on behalf of and at the risk of the customer. Transport damage must be reported immediately to the carrier and to RedCar.

§ 9 Special Notices – TÜV Approval – Reports

(1) If services provided by RedCar or the use of RedCar products result in changes to the performance data or design of the vehicle or contractual item, the vehicle’s or contractual item’s general operating permit may expire. As a result of such changes, the vehicle or contractual item may no longer comply with the German Road Traffic Licensing Regulations (StVZO) and may lose its insurance cover. Under the statutory provisions, the customer is also obliged to notify the registration authority and their motor vehicle insurer of any changes that have occurred and, where necessary, to arrange for a technical vehicle inspection (e.g. by TÜV).

(2) If the customer nevertheless drives the vehicle on public roads, they do so at their own risk. RedCar expressly assumes no liability for damage suffered by the customer or third parties as a result of failure to observe these notices and the statutory provisions.

(3) If the provision or delivery of a TÜV report or other technical declarations to facilitate the registration of modifications in the vehicle registration document has been contractually agreed, this shall expressly not constitute a guarantee that registration by TÜV or another technical organisation will actually take place. In particular, the TÜV report does not constitute an engine or vehicle warranty, nor an assurance that the product or service can be used or is suitable in the country intended by the customer.

§ 10 Warranty

(1) The customer undertakes to report any defects, faults and transport damage to the delivery item to RedCar in writing without delay after receipt and, in the case of a sale involving shipment, also to the carrier. Visible quantity discrepancies or damage must be reported immediately upon receipt of the contractual item; hidden defects must be reported without delay after discovery. [B2B] Commercial customers must notify RedCar of hidden defects in writing no later than 2 days after receipt. If the contractual item is shipped to the customer, the customer must inspect it immediately upon receipt for any external damage and raise corresponding complaints immediately with the shipping company upon taking delivery. If a shipment is received with externally visible damage, the customer is obliged to have the damage confirmed by an appropriate report or damage notification from the carrier. Failure to comply with these requirements shall result in the customer’s right to replacement or subsequent delivery being forfeited.

(2) [B2B] In the case of delivery of used goods to commercial customers, RedCar shall not assume any warranty unless expressly agreed otherwise.

(3) No warranty shall be provided for damage caused by unsuitable or improper use of the vehicle or contractual item, or by incorrect installation, commissioning and/or maintenance arranged by the customer.

(4) [B2B] With regard to parts not manufactured or repaired by RedCar itself and third-party services, particularly where these have been commissioned on behalf of the customer, RedCar’s warranty obligations towards commercial customers shall be limited to assigning to the customer the warranty claims against its supplier or subcontractor to which RedCar is entitled and referring the customer to assert these claims directly. If the customer’s out-of-court claim against the supplier or subcontractor is unsuccessful, the customer may hold RedCar liable, unless the parts not manufactured or repaired by RedCar itself or the third-party services originate from the customer.

(5) In the event of justified complaints regarding defects, RedCar shall, at its discretion, provide subsequent performance (remedying the defect or supplying an item free of defects). The costs of subsequent performance shall be borne by the customer insofar as they result from the customer having moved the contractual item to a location other than their commercial place of business. In this respect, the customer shall, if requested by RedCar, return the disputed contractual item to RedCar carriage paid. If the complaint regarding the defect proves justified, the costs of the least expensive return shipment shall be borne by RedCar. If subsequent performance fails twice, is refused by RedCar or is unreasonable for the customer, the customer shall be entitled to demand rescission of the contract (withdrawal) or a reduction in the remuneration; however, in the case of a minor breach of contract, in particular minor defects, the customer shall not be entitled to withdraw from the contract.

§ 11 Special Notices – Wear and Tear

The customer is advised and acknowledges that the services and products offered by RedCar, as well as any modifications made to the vehicle, engine, control unit or control data in the course of providing such services, may result in changes to the performance data of the customer’s vehicle. The customer is hereby advised that the engine and, where applicable, other vehicle assemblies and parts may consequently be subjected to greater stress and strain, which, due to physical factors, may result in increased wear and tear on the customer’s vehicle.

§ 12 Cost Estimates

Cost estimates shall only be binding if they are issued in writing and expressly designated as binding. If it becomes apparent during the work that the actual costs will exceed the cost estimate by more than 10%, RedCar shall inform the customer accordingly. If the customer then terminates the order, RedCar may demand the portion of the remuneration corresponding to the work performed and reimbursement of expenses not included in the remuneration.

§ 13 Retention of Title

(1) The items delivered shall remain the property of RedCar until all claims arising from the business relationship with the customer have been settled in full. In the case of payment by means of a so-called “cheque and bill of exchange transaction”, retention of title shall continue even if the cheque submitted by the customer has been honoured, until the bill of exchange has been returned, cancelled or recourse under the bill of exchange has otherwise been excluded.

(2) In the event of processing, mixing or combining RedCar’s items, it is agreed that this shall be carried out in the name of RedCar as manufacturer and that RedCar shall acquire direct ownership. If processing, mixing or combining takes place with goods/materials belonging to several owners, or if the value of the item thus manufactured is higher than the value of the goods subject to retention of title, RedCar shall acquire co-ownership (fractional ownership) or an expectant right to future (co-)ownership of the newly created item in proportion to the respective values.

(3) The customer shall only be permitted to sell the contractual items subject to retention of title (hereinafter: “Reserved Products”) in the ordinary course of business. However, resale shall be prohibited if the claims arising from the resale are not transferred to RedCar. The customer shall not be entitled to pledge the Reserved Products, transfer them by way of security or otherwise make dispositions that jeopardise RedCar’s retained ownership. The customer hereby assigns to RedCar, which accepts this assignment, the claims arising from any resale – in the case of co-ownership within the meaning of paragraph 2 above, in the corresponding proportional share. The customer is revocably authorised to collect the claims assigned to RedCar in trust for RedCar in the customer’s own name. RedCar may revoke this authorisation and the right to resell if and to the extent that the customer is in default with payments owed to RedCar.

(4) The customer shall be obliged to handle the Reserved Products carefully for the duration of the retention of title and to insure them adequately at their own expense. Any impairment of RedCar’s ownership rights by third parties, in particular through seizure or attachment, must be reported to RedCar immediately by the customer, together with any available documents (e.g. attachment records). The customer shall inform the third party of RedCar’s ownership rights. The customer shall bear the costs incurred by RedCar as a result of the impairment of its rights.

(5) In the event of conduct by the customer in breach of contract – in particular in the event of default in payment – RedCar shall be entitled to withdraw from the contract and demand the return of the goods, without prejudice to its other rights.

(6) At the customer’s request, RedCar shall be obliged to release the securities to which it is entitled under the preceding provisions to the extent that their realisable value exceeds the total secured claims by 20%.

§ 14 Right of Retention

RedCar shall have a right of retention and a lien over items belonging to the customer that have come into RedCar’s possession under the contract in respect of any claim against the customer. RedCar shall be entitled to realise the pledged items by way of private sale. A written notice sent to the customer’s last address known to RedCar shall be sufficient notice of the intended sale.

§ 15 Liability

(1) Claims not expressly granted under these terms and conditions, in particular claims by the customer for damages and reimbursement of expenses in respect of any form of defective performance of the contract, as well as claims arising from tort, are excluded. This exclusion of liability shall not apply in cases of intent or gross negligence, nor to damage resulting from injury to life, body or health, nor under the German Product Liability Act, nor where RedCar has fraudulently concealed a defect.

RedCar shall also be liable for ordinary negligence insofar as RedCar has contractually assumed the procurement risk or a guarantee, or where the obligations concerned are essential for achieving the purpose of the contract and the customer may rely on their strict observance (“cardinal obligations”).

(2) Except in cases of intentional or grossly negligent causation of damage, RedCar’s liability for damages shall also be limited in principle to damage that is typical and foreseeable under the contract and, in terms of amount, shall be limited overall to the coverage provided by RedCar’s (product) liability insurance, which is not less than EUR 6,000,000. Consequential damage exceeding this amount is excluded.

(3) To the extent that liability is excluded under this provision, this shall also apply to the liability of RedCar’s vicarious agents and persons engaged in performing its obligations.

§ 16 Limitation Periods

(1) The customer’s claims for defects shall become time-barred one year after delivery of the contractual item. This shall not apply to defect claims by consumers, for which the statutory limitation period shall apply. Claims by the customer based on a defect in the goods consisting of a third party’s right in rem entitling that party to demand surrender of the goods, or another right that may be registered in the Land Register, shall become time-barred after three years.

(2) [B2B] Other contractual claims by the customer arising from breaches of duty shall likewise become time-barred after one year, insofar as legally permissible, with the exception of claims for damages resulting from injury to life, body or health or from a breach of an essential contractual obligation, as well as claims for other damage based on an intentional or grossly negligent breach of duty by RedCar, its legal representatives or vicarious agents, claims for reimbursement of expenses pursuant to Section 478(2) BGB and claims arising from fraudulent concealment of a defect.

§ 17 Place of Performance, Place of Jurisdiction and Applicable Law

(1) The place of performance for all delivery, manufacturing and payment obligations of the parties arising from the contract shall be RedCar’s registered office or place of business.

(2) [B2B] If the customer is an entrepreneur or a legal entity under public law, or has no place of jurisdiction in Germany, Hamburg shall be the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, RedCar shall remain free to bring proceedings against the customer at the customer’s general place of jurisdiction.

(3) These terms and conditions and the entire legal relationship between RedCar and the customer shall be governed by the laws of the Federal Republic of Germany.

§ 18 Data Protection

(1) The customer’s data required for processing the business transaction shall be stored by RedCar and shall only be passed on in the course of contract performance where this is necessary in compliance with the statutory data protection provisions.

(2) [B2B] For the purpose of executing the order, the customer must in particular provide the VAT identification number issued by the competent tax office for the relevant place of business, as well as all other information required under the applicable statutory provisions. Otherwise, the order shall not be processed. The customer hereby expressly declares their consent.

§ 19 Final Provisions

If any individual provision contained in these General Terms and Conditions is or becomes invalid, the validity of the remaining provisions shall remain unaffected. The relevant provision shall instead be interpreted or replaced in such a way that, as far as possible, the economic purpose pursued by it is achieved; it shall be deemed to have been agreed anew accordingly. The same shall apply mutatis mutandis to the filling of contractual gaps.