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General Terms and Conditions of Business |
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For the Sale of Vehicles, Trailers, and Spare Parts
1. Defensive clause, definition of consumer / company
1.1 Our goods and services are supplied and offers are submitted exclusively on the basis of the following General Terms. They also apply to all future business relationships even if they have not been expressly agreed again.
1.2 Terms of business that deviate from these shall have no validity, unless we confirm them in writing, and shall form no part of any contract even if they seek to preclude the application of our terms of business and even if these present General Terms are not expressly rejected.
1.3 A consumer shall be defined for the purposes of these General Terms as any natural person who enters into a legal transaction for a purpose that cannot be attributed to any commercial or self-employed activity (see Article 13 of the Code of Civil Law).
A company shall be defined for the purposes of these General Terms as any natural person or legal entity, including a legally existing partnership, who or that enters into a legal transaction acting in exercise of his, her, or its commercial or self-employed activity (see Article 14 of the Code of Civil Law).
2. Offers, creation of contract, state of our products
2.1 Our offers shall always be non-binding. Contracts for the supply of goods and/or services shall be created on the basis of our confirmation of order, or in the absence of the same on the basis of our supply.
2.2 The agreed state of our products shall consist exclusively of the properties and characteristics stated in our confirmation of order, our other product descriptions, and our instructions for use. In the event of any contradiction these documents shall apply in the above order of precedence. No other or additional properties and characteristics shall be deemed to be the agreed state of the product unless we have expressly confirmed them in writing.
2.3 Declarations from our side on the state of the products shall not be construed as a guarantee of their state unless we have expressly confirmed them in writing.
3. Prices
The price of the goods shall be defined as the price ex-works from the manufacturer plus any delivery charges. Any agreed ancillary costs shall be calculated additionally.
4. Payments
Our receivable accounts shall be due for payment in counter-performance upon supply of goods or completion of service. If any later payment date or payment by bill-of-exchange or cheque is agreed, we shall be entitled to retain the vehicle’s or trailer’s papers (“Fahrzeugbrief”) or General Operating Licence (“allgemeine Betriebserlaubnis”) until the account has been settled and/or the cheque or bill-of-exchange has been cashed with irrevocable effect and all accounts settled that relate to the vehicle or trailer. The foregoing shall not affect the provisions covered by Clause 7, “retention of title”.
If a company (as defined in sub-clause 1.3 above) falls into arrears of payment towards us that amount to more than 15 percent of our account receivable from him and for more than 14 days, we shall be entitled to declare all accounts re-ceivable from him to be payable immediately even if payment terms have been agreed or a bill-of-exchange provided that are not yet due. Even if other payment modalities have been agreed by contract, in this case we can make the further delivery of goods and/or service dependent upon payment in advance or collateral of the same value being provided.
5. Delivery, arrears of delivery, changes of design or form, product descriptions
5.1 Delivery dates and delivery periods that are not expressly stated to be binding shall be deemed to have been agreed as non-binding. They shall be stated in writing. Delivery periods shall start on the date on which the parties enter into the contract.
5.2 If a non-binding delivery period has been exceeded or a non-binding de-livery date missed by six weeks, the Customer shall be entitled to require us in writing to deliver within a reasonable stated period. We shall be deemed to be in arrears with effect from the date on which we receive this request. The Customer shall be entitled to compensation in addition to delivery for any loss suffered as a result of the delay; any such claim shall be limited, in any case in which we have acted in minor negligence, to a maximum of 5 percent of the agree purchase price.
If the stated extension period expires fruitlessly the Customer shall be entitled to cancel the contract by making a written declaration to this effect and to require compensation for non-fulfilment; if we have acted in minor negligence, compensation shall be limited to such losses as can be typically foreseen in such cases. If this paragraph is applied the Customer shall have no right to require delivery.
If we are prevented by chance circumstances from making delivery when we are already in arrears we shall still bear liability as defined in Paragraphs 1 and 2 above unless the loss would have occurred even if we had delivered on time.
5.3 If a binding delivery period has been exceeded or a non-binding delivery date missed we shall be deemed to be in arrears from the date on which delivery was due. The Customers’ rights shall be those defined in sub-clause 5.2 paragraph 1 (sentence 3) and paragraphs 2 and 3 above.
5.4 Any Act of God or force majeure that causes an interruption to opera-tions for us or our suppliers, e.g. civil commotion, strike, lock-out, destruction of the production machinery, and that prevents us through no fault of our own from delivering the contractual goods on the agreed date or within the agreed period, shall have the effect of postponing the delivery date or prolonging the delivery period for the length of time for which delivery is prevented through these circumstances.
If any such events cause delivery to be postponed for more than 8 weeks the Customer shall have the right to cancel the contract.
The foregoing provisions shall not affect claims based on frustration or other rights of cancellation. The Customer shall have no right to claim compensation unless we are to blame for the delay having acted with intent or in gross negli-gence.
5.5 We shall reserve the right to make changes in technical design or form, deviations in colour, and changes to the scope of goods to be supplied pro-vided they do not fundamentally affect the contractual goods and the Customer can be reasonably expected to accept the changes.
5.6 Data in product descriptions referring to performance, weight, operating costs, consumption, speed, etc. shall be regarded as only approximate and shall not be construed as any agreement on the state of the product as defined in Article 434 paragraph 1 sentence 1 of the Code of Civil Law.
6. Hand-over
6.1 The contractual goods shall be handed over in the works in Lastrup.
6.2 If the contractual goods are not in line with the agreements or guarantees on the state of the goods, or if they display serious defects, and if it is not possible to bring the goods into line with the contract within 8 days of a complaint being made, the Customer can refuse to take delivery.
6.3 If the Customer is a company (see sub-clause 1.3) he shall inspect the contractual goods on delivery and shall raise a complaint without delay if any defects or damage are identified. If goods have been delivered the customer shall note them on the delivery note. Should he fail to do so, he shall lose his guarantee rights. The foregoing shall not affect the provisions of Articles 377 and 378 of the Code of Commercial Law.
6.4 If the Customer falls culpably into arrears of more than 14 days from the date on which he receives notification of availability for collection from the works in Lastrup, or if in the case of the goods being delivered he falls into arrears of acceptance, we shall be entitled to set him an extension period of 14 days and at the same time to declare that we will cancel the contract if this period expires fruitlessly and are require compensation on the grounds of non-fulfilment.
No extension period shall need to be set if the Customer has refused in all seriousness and with finality to accept the goods or will obviously be unable to pay the agreed remuneration within the extension period.
6.5 If we require compensation under the terms of sub-clause 4 paragraph 1, this shall amount to 15 percent of the agreed purchase price excluding VAT. Compensation shall be set at a higher or lower level if we can show that our loss was greater or the Customer can show that it was less.
7.5 Retention of title
7.1 The contractual goods shall remain our property until all claims for pay-ment to which we are entitled under the contract have been settled.
If the Customer is a company (see sub-clause 1.3), we shall retain title to all contractual goods until all our claims to payment under the business relationship have been satisfied including the balance on any current account.
For the duration of the retention of title we shall have the right to retain possession of the vehicle or trailer papers and/or the General Operating Licence.
Retention of title shall not expire even if the vehicle or trailer papers and/or the General Operating Licence are sent to the Customer’s bank with the requirement to make use of the same only on a trustee basis in return for payment or if the same are sent to the Customer.
If the customer falls into arrears of payment we shall be entitled to require the interim surrender of our retained goods at the Customer’s expense even without having set any extension period and if necessary to require the assignment to us of the Customer’s claim to surrender of the goods from his customer. No such request for the surrender of the goods, the surrender itself, the request for the assignment of the Customer’s accounts receivable from third parties, nor the assignment itself shall be construed as implying that we are cancelling the contract. We shall return the retained goods and/or assign the rights over the receivable accounts back to the Customer when the payments due to us have been received.
7.2 If the Customer is a company (see sub-clause 1.3) he shall be entitled to resell or process the retained goods in the course of his normal business operations. The company shall transfer to us in advance his accounts receivable from the resale of the retained goods by way of collateral.
7.3 We hereby authorise the Customer, if he is a company (see sub-clause 1.3), until further notice to collect the receivable accounts on our behalf. We shall be entitled to withdraw this authorisation if the Customer falls into arrears in part or all of his payments or if an application is made for insolvency proceedings to be opened over his assets. If this aforesaid authorisation to collect receivable accounts that has been granted to the company is withdrawn, the Customer shall provide us with all information necessary for the collection of the assigned accounts and to hand over the necessary documentation.
7.4 If under the highest adjudication we have no protectable security interest in the collateral to which we are entitled we shall, if the Customer so requests, release it to the point at which no (further) protectable security interest exists.
7.5 If the Customer is a company (see sub-clause 1.3) he shall inform us of the location of the contractual goods that are under retention of title. The location shall not be changed unless we have given our prior written assent or if the Customer has sold the goods in the course of his normal business operations. We shall be given access to the retained goods during normal business hours.
7.6 If the Customer is a company (see sub-clause 1.3) he shall be under an obligation for the duration of the retention of title to safeguard the retained goods carefully and to keep them in a correct and proper condition and to carry out any necessary servicing and maintenance work at his own expense. If the retained goods are damaged or destroyed, any resultant claims for damages and the restoration of the retained goods, or for the payment of our account receivable if this is not possible, shall be applied against the Customer. The Customer shall transfer such claims to us in advance by way of collateral.
7.7 No pledging, assignment as collateral, renting, or other transfer of the retained goods that could affect the collateral assignment of the retained goods and no change in the same shall be permissible without our prior written agreement. In the event of any intervention by a third party, meaning in particular any attachment of the retained goods or the exercise of company right of lien by a workshop, the Customer shall inform us without delay and in writing and shall inform the third party without delay of our retention of title. The Customer shall bear the cost of warding off the intervention and in particularly of any related court proceedings if they cannot be collected from the opposing party.
8. Guarantee period, guarantee
The guarantee periods shall be two years from the date of delivery for new products, or one year for second-hand products, if the Customer is a consumer. If the Customer is a company the guarantee period shall be one year from the date of delivery for new and for second-hand products.
8.1 If the Customer is a consumer his guarantee rights arising from the supply of a defective product shall be those defined in Articles 434 et seq. of the Code of Civil Law.
8.2 If the Customer is a company we shall initially, at our free discretion, either rework or replace the defective product.
8.3 If our attempts at subsequent fulfilment prove fruitless the Customer can at his free discretion require either a reduction in the price or the cancellation of the contract. The Customer shall have no right to cancel the contract if the contractual violation is only of a minor nature and particularly if the defect is only minor.
8.4 If the Customer is a company (see sub-clause 1.3) we shall be under no guarantee obligations if:
a) the defect or damage has been caused by
- the Customer having failed to report the defect or to arrange for it to be recorded;
- the Customer having failed, despite having been requested, to provide an opportunity without delay for the defect to be rectified;
- the company having treated the contractual goods in any other than the cor-rect and proper manner or having subjected them to excessive loads, forces, or other harmful factors;
- parts having been installed on the contractual goods without our having approved their use or the contractual goods having been used in any way that we have not approved;
and/or
b) he has not properly fulfilled his obligation to inspect the goods and raise any necessary complaints (see Articles 377 and 378 of the Code of Commercial Law and sub-clause 6.3 of these General Terms).
8.5 Normal wear and tear shall not be covered by guarantee obligations.
8.6 In the case of second-hand goods the Customer shall bear the onus of proof that the goods were defective at the time they were delivered.
8.7 The foregoing shall be without impact on Article 478 of the Code of Civil Law.
9. Restrictions of liability, statute of limitations effect on claims for damages
9.1 The following restrictions of liability shall not apply if we are to blame for injury to body or health or for a fatal injury to the Customer.
9.2 In the event of the violation of a major contractual obligation (a so-called cardinal obligation we shall normally bear unlimited liability for any loss or damage that we have caused by acting with intent or in gross negligence; if we have acted in minor negligence our liability shall be restricted to the foresee-able loss or damage that would be typical of such cases.
9.3 In all other cases, and regardless of the legal grounds for damages, we shall bear no liability unless we, any person legally authorised to represent us, or our contractual or vicarious agents have acted with intent or in gross negligence.
We shall bear no liability towards companies in any case of minor negligence and violation of minor contractual obligations; if we have acted in gross negligence our liability shall be restricted to the foreseeable loss or damage that would be typical of such cases.
9.4 If our liability is excluded or restricted under the terms of the foregoing paragraphs, the same shall apply to the personal liability of our contractual and vicarious agents.
9.5 The Customer’s claims on the grounds of defects in the goods shall fall under the statute of limitations when one year has elapsed since the delivery of the goods. This shall not apply if we can be accused of having acted with intent or in gross negligence or if we are to blame for injury to body or health or for fatal injury to the Customer.
9.6 The foregoing restrictions of liability shall not affect the Customer’s right to make a claim under any guarantee as to the state of the goods.
9.7 Any liability we may bear under the Product Liability Act shall not be dependent on any culpability on our side.
10. Place of execution, place of jurisdiction, applicable law
10.1 The place of execution for the delivery of the contractual goods shall be the manufacturer’s works.
10.2 Lastrup in Oldenburg (Germany) shall be shall be the sole place of jurisdiction for all present and future claims under the business relationship with registered traders, including jurisdiction over claims under bills-of-exchange and cheques.
10.3 If the Customer has no general place of jurisdiction in Germany, or if he moves his place of residence or normal whereabouts outside Germany after entering into the contract, or if his place of residence or normal whereabouts are unknown at the time when an action is raised, Lastrup in Oldenburg shall be shall be the sole place of jurisdiction.
10.4 The contractual relationship with the Customer shall be based on German substantive law and in particular on the Code of Civil Law and the Code of Commercial Law, even if the contractual goods are to be delivered to a place outside Germany or the contract has any reference to a foreign country. There shall be no application of German International Civil Law, any foreign body of law, or international agreements of two or more pages, nor in particular of the UN Convention on contracts for the international sale of goods dated 11th April 1980.
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