General Terms and Conditions of YOKOHAMA Europe 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 Europe GmbH (hereinafter referred to as “Yokohama”, “we”, “us”) as the seller and the customer (hereinafter referred to as “Purchaser”) in his capacity as an entrepreneur (within the meaning of Sec, 14 German Civil Code, hereinafter referred to as “BGB”) or as a legal entity under public law and special fund (within the meaning of Sec. 310 para. 1 BGB). Yokohama and the Purchaser together are hereinafter referred to as the “Parties". An entrepreneur within this meaning means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.

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. This shall also apply even if the GTC are not expressly agreed upon again. 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. These GTC shall also apply if Yokohama performs the delivery or the services vis-à-vis the Purchaser without reservation in full awareness of contradictory or deviating terms and conditions of the Purchaser.

1.4. Any and all future agreements concluded between Yokohama and the Purchaser shall be stipulated in writing in the relevant contract and any supplementary contracts.

2. Offer and conclusion of the contract

2.1. Yokohama’s offers are not legally binding.

2.2. In the event an order of a Purchaser qualifies as an offer pursuant to Sec. 145 BGB, Yokohama can accept this offer within two weeks of receiving such offer by sending an order confirmation.

2.3. Cost estimates of Yokohama are - unless agreed otherwise - subject to change and not binding. A specific offer provided by Yokohama is only binding for two weeks or for the period indicated in the offer.

2.4. 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.

2.5 The documents submitted and information provided by Yokohama, such as drawings, plans, weights and measurements, shall only be binding insofar as Yokohama expressly lists them in the order confirmation as an integral part of the contract and/or refers to them in the order confirmation.

3. Subject of Delivery

3.1. Unless otherwise stipulated in the order confirmation, the parties agree upon a delivery or performance ex works.

3.2. Yokohama shall be entitled to partial deliveries, as long as these are reasonable for the Purchaser.

3.3. 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.

3.4.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.

4. Delivery dates

4.1. Delivery and performance periods indicated by Yokohama shall be non-binding, unless Yokohama expressly confirms the exact date of delivery or performance in writing.

4.2. Yokohama shall always endeavour 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.

4.3. The periods of delivery or performance shall not commence before all commercial and technical queries existing between the Parties have been clarified and presupposes the timely and proper fulfilment of the Purchaser’s obligations. Compliance with the periods of delivery and performance shall be subject to correct and timely delivery from suppliers. Yokohama shall immediately notify any foreseeable delays. 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.

4.4. The fulfilment of the contract by Yokohama with respect to such delivery parts which are governed by national export regulations shall be subject to the granting of the required approvals.

4.5. We shall not be deemed to be in default if the Purchaser is in default with the fulfilment 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. Transport packaging and other packaging in accordance with the German Regulation on Packaging (Verpackungsverordnung, VerpackV) will not be taken back. The Purchaser shall be responsible for the disposal of packaging material at its own expense.

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 transport or collection of the subject-matter of the contract by the Purchaser is delayed at its request or due to its own fault, Yokohama will store the goods at the expense and risk of the Purchaser. In such case, the risk shall pass to the Purchaser as of the day of notification of readiness for dispatch or acceptance.

5.5. If the Purchaser is in default of acceptance, the risk of accidental loss or deterioration of the subject-matter of the contract passes to the Purchaser at the point in time the latter begins to be in default of acceptance.

5.6. Any costs arising from the default of acceptance of the goods by the Purchaser, shall be borne by the Purchaser if the Purchaser is responsible for the default pursuant to Sec. 280 para. 1 and 2, Sec. 286 BGB. This includes, but is not limited to, costs as a result of a culpable delay causing (i) demurrage, (ii) detention, (iii) storage cost, (iv) costs related to port penalties or (v) port penalties.

5.7.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.

5.8. Yokohama and the company performing the transport must be notified in writing of any transport damage immediately, but no later than five days from delivery.

5.9. A return of contractually delivered (defect-free) 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) and any additional charges which are to be paid as environmental taxes under local law (EcoTax). Delivery and invoicing are affected at the total prices (list price, VAT and EcoTax) and conditions valid at the time of dispatch or collection of the ordered goods. The respectively applicable statutory VAT amount shall be stated separately in the invoice. In case of deliveries and services within the European Union, the Purchaser shall provide its VAT identification number in due time prior to the agreed delivery date as proof of tax exemption. In the event of failure to provide Yokohama with complete information in due time, Yokohama reserves the right to charge applicable VAT. In case of deliveries and services outside the European Union, Yokohama is entitled to charge statutory VAT retrospectively if the Purchaser does not send to Yokohama an export proof within one month after the respective dispatch.

6.2. The prices are based on Yokohama's price lists, as amended from time to time, and are exclusive of packaging and shipment (ex works), unless otherwise indicated in the offer. Costs of packaging and loading as well as the costs of taking back the packaging will be charged separately. The same shall apply to shipment costs if the Purchaser requests a shipment.

6.3. Yokohama reserves the right to amend the prices accordingly if cost increases occur between the conclusion of the contract and the delivery for which Yokohama is not responsible, in particular, newly charged fees, additional charges, significant increases in material or production costs, including increases in freight costs including customs, import and export fees as well as cost increases as a result of exchange rate fluctuations.

6.4. In case of partial deliveries or services pursuant to Sec. 3.2 (Subject of Delivery) of these GTC, Yokohama is entitled to receive respective partial payments.

6.5. The invoices of Yokohama are to be paid free of postage and expenses. Unless stipulated otherwise in the respective contract or by law, payment shall be due immediately upon delivery or performance. The Purchaser shall automatically be in default from the due date and receipt of the invoice without a reminder being required. 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.

6.6. 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.

6.7. 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 honoured, 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. Yokohama is also entitled at its sole discretion to demand a sufficient security for any future claims that arise after Yokohama has had reasonable doubts abouts the Purchaser’s solvency for the first time.

6.8. The Purchaser shall only be entitled to set-off against our payment claims or to exercise rights of retention if 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 fulfilment 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 (including VAT) 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 favour 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 Yokohama shall serve as security for all of our claims against the Purchaser, including those arising in the future.

7.6. TThe Purchaser is authorized to collect the assigned claims if and as long as he properly fulfils his payment obligations. If the Purchaser does not properly fulfil 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 Sec. 950 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 Sec. 947, 948 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 attachments or other recourse claims by third parties to the sold goods, the Purchaser shall indicate that these are the property of Yokohama and inform Yokohama thereof immediately to enable Yokohama to instigate third party claim proceedings pursuant to Sec. 771 of the German Code of Civil Procedure (Zivilprozessordnung, “ZPO”). The Purchase shall be liable to the extent that the third party is not able to reimburse Yokohama for the court fees and out-of-court fees incurred while enforcing its rights of ownership

7.11. 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.

7.12. As long as a claim exists in favour 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.

7.13. 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, Yokohama will try to sell the returned goods in the best possible way after prior notification.

7.14. 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.

7.15. 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 realisable 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 without dely. 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 tyres, 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 replacement deliveries for the purpose of subsequent performance, the Purchaser shall return the delivered item. 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 BGB) with a deduction corresponding to the degree of wear and tear of the defective tyre; 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. There shall be no additional warranty claims for defects which occurred due to inappropriate or incorrect use, faulty commissioning, usual wear and tear, faulty or negligent treatment, excessive use and improper maintenance of the subject-matter of the contract as well as due to changes to the subject-matter of the contract by the Purchaser or on its behalf by third parties without Yokohama's express consent. This excludes in particular, but is not limited to, claims for defects under the following circumstances:

a) if the claimed defective tyre 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 and this had caused the defect;

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 and this had caused the defect;

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

f) if the tyre 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 and this had caused the defect;

g) if the tyre 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 retreated by a third party;

h) if the tyre was mounted on a rim not assigned to it, ungauged, rusty or otherwise defective and this had caused the defect;

i) if the tyre has been damaged by external impact or mechanical damage or has been exposed to external heating and this had 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 tyre shows damage related to the application of spikes, squats, etc. by any third party and this had caused the defect;

l) if the tyres have been modified within the meaning of Sec. 10 para. 2 (Product changes) of these GTC and this had caused the defect.

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 (Limitation of Liability) of these GTC.

9. Limitation of liability

9.1. Yokohama shall be liable without limitation for wilful misconduct (intent) and gross negligence. With regard to slight negligence, Yokohama's liability shall be limited and restricted to the foreseeable damage that might typically occur under the contract if an obligation is violated, the fulfilment of which is essential for the proper performance of the contract and on the compliance with which the Purchaser may regularly rely (“Cardinal Duty” or “Material Dury”). A “Cardinal Duty” or "Material Duty" within the meaning of these GTC 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 these GTC, and/or (ii) any contractual duty the fulfilment of which is a basic requirement enabling the proper performance of these GTC in the first place and in the fulfilment of which the Purchaser may usually trust.

9.2. Yokohama shall be liable for cases of initial impossibility only if it had knowledge of the hindrance to performance or if its lack of knowledge is due to gross negligence.

9.3. The foregoing liability limitations or exclusions shall not apply to claims resulting from fraudulent concealment of a defect, acceptance of a guarantee pursuant to Sec. 443 BGB and claims pursuant to the German Product Liability Act (Produkthaftungsgesetz, “ProdHaftG”) and to damage arising from personal injuries to life, body or health.

9.4. The exclusions or limitations of liability, pursuant to Sec. 9.1 to 9.2 of these GTC, 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.

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

9.6. 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 delay 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 these GTC without judicial intervention and without any obligation whatsoever to compensate the damages of the Purchaser.

9.7. 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 grinded out or whose quality has been reduced, must not be used in road traffic or delivered to third parties.

11. Export, Indication of the place of origin

11.1. The Purchaser undertakes to export the goods and technical information supplied by Yokohama exclusively in compliance with the respective export regulations and to impose the same obligations on its buyers.

11.2. Any and all taxes, fees and charges in connection with the performance of the services outside of the Federal Republic of Germany shall be borne by the Purchaser or, if these have already been paid in advance by Yokohama, these shall be reimbursed to Yokohama.

11.3. Any change to Yokohama's products, in particular every marking by the Purchaser or a third party indicating the origin or implying that the product is of the origin of the Purchaser or a third party, is strictly forbidden unless Yokohama has given its prior written consent.

12. Privacy

The Purchaser is informed that, if applicable, personal data will be stored and processed by Yokohama in accordance with the provisions of the General Data Privacy Regulation (GDPR, Ger: DS-GVO). Our applicable privacy policies and information documents are made available in separate documentation.

13. Final Provision

13.1. 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.

13.2. These GTC and any agreement deriving therefrom 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).

13.3. 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.

13.4. 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.