Section 1 General Points
(1) These General Sales Conditions (hereinafter referred to as GSC) shall apply between us and our customers (hereinafter referred to as "Purchasers"), irrespective of whether they be natural or legal persons, for the concrete legal business. If the customer is an entrepreneur, these GSC shall apply as a framework agreement for all future business, even if this is not explicitly referred to in an individual case.
(2) A consumer, in the sense of these GSC, shall be a natural person who concludes a transaction for a purpose that essentially can be added to neither their commercial nor their independent professional activity (Section 13 of the German Civil Code (BGB)). An entrepreneur, in the sense of these GSC, shall be any natural or legal person or a legally responsible partnership, who, at the conclusion of a transaction, deals in the execution of their commercial or independent professional activity. Entrepreneurs and consumers shall be consistently referred to as Purchasers in these GSC.
(3) The GSC shall apply to contracts concerning the sale and / or delivery of moveable items, particularly vehicles of all types, trailers, accessories and spare parts (referred to below as "contract goods") without consideration of whether we manufacture these ourselves or purchase them from suppliers (Sections 433, 651 BGB).
(4) Our GSC shall apply exclusively. Deviating, opposing or supplementary GSC or purchasing conditions of the Purchaser shall only be a constituent part of the contract if we have explicitly agreed to their validity, and only to the level agreed to by us. This approval requirement shall apply in all cases, for example also if we carry out the delivery to them unconditionally in knowledge of the terms of business of the Purchaser.
(5) Agreements made with the Purchaser in an individual case, such as modifications, side agreements and supplements, shall always have priority over these GSC. A written contract or our written confirmation shall be essential for the content of such agreements.
(6) Declarations and notifications that are relevant in law and that the Purchaser makes to us after completion of the contract (such as setting of deadlines, reports of defects, notification of withdrawal or mitigation) shall need to be in writing to become effective.
(7) Indications concerning the validity of legal regulations shall only serve as clarification. Even without clarification of this type, this shall mean that the legal regulations apply, provided that they have not been immediately modified or explicitly excluded in these GSC.
(8) The ineffectiveness of one or more clauses of these GSC shall not mean that all the other clauses become ineffective. In addition, both partners to the contract shall recognise the clauses that are not affected as fully applicable. In place of the ineffective clauses, those that are closest in legally permissible form shall be agreed as applicable, based on commercial considerations.
Section 2 Contract Formation
(1) Our quotations shall be without obligation and are non-binding. This shall also apply if we have submitted catalogues, technical documentation (such as drawings, layouts, calculations, references to DIN standards etc.), additional product descriptions or documents - including in electronic form - to the Purchaser. We shall reserve the property rights and copyrights to these items. They must not be made accessible to third parties without our explicit, written approval.
(2) Information from catalogues, technical documentation (such as drawings, layouts, calculations, references to DIN standards etc.) additional product descriptions or documents that cannot be attributed to us must be disclosed to us by the Purchaser - insofar as these are used the basis for their decision. In this case, we shall be entitled to make comments as to their correctness. If the Purchaser infringes this obligation, these details shall become non-binding, provided that they have not been declared explicitly as being part of the content of the contract. If the customer is an entrepreneur, this declaration must be explicitly in writing.
(3) The ordering of the contract goods by the Purchaser shall be regarded as a binding contract quotation. Unless the purchase order stipulates otherwise, we shall be entitled to accept this contract quotation within a period of 14 days from its receipt by us.
(4) The acceptance shall be in writing (e.g. in the form of a purchase order confirmation) or, if there is no written acceptance, by delivery of the contract goods to the Purchaser.
Section 3 Delivery Period and Delivery Delay
(1) The delivery period shall be agreed individually or shall be stated by us when accepting the purchase order. The delivery period shall apply ex-works and stores.
(2) The delivery period shall be extended accordingly in accordance with the modification or supplementary wishes expressed by the Purchaser after completion of the contract. We shall advise the Purchaser of the new anticipated delivery period without delay.
(3) The delivery period shall apply with the reservation of the influence of unanticipated events on our side or at our sub-supplier, such as delays for which we are not responsible in the manufacturing of significant parts for delivery, delayed delivery of significant raw materials, force majeure, official measures, operational interruptions etc., provided that these events have an effect on the manufacture or delivery of the contract goods.
(4) If we cannot meet the delivery periods for the reasons quoted in Paragraph 3, we shall advise the Purchaser of the fact without delay and shall advise them of the new anticipated delivery period. The declaration issued by our sub-supplier shall count as adequate verification for the fact we are hindered in the delivery or service provision. If the service is also not available within the new delivery period, we shall be entitled to withdraw fully or partially from the contract; any reciprocal consideration already made by the Purchaser shall be refunded without delay. Our legal rights to withdrawal and cancellation and the legal regulations concerning the execution of the contract in the case of an exclusion of the performance obligation (e.g. impossibility or unreasonableness of the service and / or subsequent fulfilment) shall remain unaffected. The withdrawal and cancellation rights of the Purchaser from Section 8 shall also remain unaffected.
(5) The incidence of our delivery delay shall be determined in accordance with the legal regulations. However, an overdue notice from the Purchaser shall be required. If we are in delivery default, the Purchaser shall be permitted demand reimbursement of their delay damages.
Section 4 Delivery, Transfer of Risk, Acceptance, Delay in Receipt
(1) The shipment shall be ex-works Lastrup, which is also the place of delivery. Upon request by the Purchaser, and at their expense, it shall be possible to send the contract goods to a different intended location (sale by dispatch). Unless agreed otherwise, we shall ourselves be entitled to choose the type of dispatch (in particular the transport company, dispatch route, packaging).
(2) The risk of accidental destruction and accidental change for the worse of the contract goods shall be transferred to the Purchaser at the latest when they are transferred to them. However, in the case of dispatch sale, the risk of accidental destruction and accidental change for the worse of the contract goods and the risk of delay shall already be transferred at the point of delivery of the contract goods to the transport company, the freight carrier or the person or institution stipulated for execution of the dispatch. If our employees provide assistance in the loading or unloading of the contract goods, they shall be acting at the risk of the Purchaser as their assistants for the fulfilment. If the Purchaser is a consumer, the risk of accidental destruction and accidental change for the worse of the contract goods and the risk of delay shall only be transferred to the Purchaser if they have commissioned the transport company, the freight carrier or the person or institution commissioned with the execution and if we have not already designated this person or institution to the Purchaser. If an acceptance has been agreed, then this shall be definitive for the transfer of risk. In addition, the legal regulations of work contract law shall be applicable to an agreed acceptance. The transfer and acceptance shall be equivalent if the Purchaser is in default with the acceptance.
(3) If the Purchaser is in acceptance default, if they does not carry out his joint collaboration dealings or if the delivery is delayed for other reasons that are the responsibility of the Purchaser, then we shall be entitled to demand the reimbursement of the resulting damages, including additional expenditure (e.g. storage costs).
Section 5 Prices and Terms of Payment
(1) Unless agreed otherwise in each individual case, our prices current at the time of contract completion shall be applicable, ex-stock, plus the statutory Value Added Tax.
(2) In the case of dispatch sale (Section 4 Paragraph 1), the transport costs ex-stock and, if necessary, the costs of a transport insurance desired by the Purchaser shall be carried by the Purchaser. The Purchaser shall pay for any customs clearance, levies, taxes and other public expenditures. We shall not take back the transport and other packaging, in accordance with the stipulations of the packaging regulations, and it shall become the property of the Purchaser, with the exception of pallets.
(3) The purchase price shall become due for payment, in full, immediately the invoice is issued. We shall be entitled to demand a down-payment of the purchase price. The down-payment shall immediately become payable in full.
(4) The purchase price shall be increased by interest at the current legally applicable rate during the period of delay. We shall reserve the right to enforce extended damages caused by delay. With regard to traders, our claim to commercial due date interest (Section 353 HGB) shall remain unaffected.
(5) The Purchaser shall only have the right to offset or retain payment if their claim is legally determined or is uncontested. In the event of defective delivery, Section 8 Paragraph 6 shall remain unaffected.
(6) If it is detected, after completion of the contract, that our claim for the purchase price is endangered by defective performance capability of the Purchaser (such as an application to open insolvency proceedings), then we shall be entitled to withdraw from the contract in accordance with the legal regulations for refusal of performance - possibly after setting a deadline (Section 321 BGB). In the case of contracts for the manufacture of untenable items (one-off production) we can declare the withdrawal immediately, the legal regulations concerning the dispensability of deadline setting shall remain unaffected. If we withdraw from the contract, we shall be able to demand reimbursement of damages instead of the performance or reimbursement of expenses.
Section 6 Title Retention
(1) We shall reserve the property rights to the sold contract goods until payment in full of all the current and future demands resulting from the purchase contract and from on-going business relationship (secured demands). We shall be entitled to be in possession of the vehicle documents during the period of the title retention. This shall not not mean that our property to which we retain the title does not transfer to the Purchaser or third parties, so that the vehicle documents go to a credit institute of the Purchaser with the constraint that they are made available only on trust against payment, or they are transferred to the Purchaser.
(2) The Purchaser shall be obligated to handle the contract goods with care for as long as the property has not been transferred to them. If high-value goods for sale are involved, then they shall be particularly obligated to insure them adequately, at their own cost, against theft, fire and water damage at the value of new items. The Purchaser shall assign their future claims for reimbursement from their insurer to us, to be on the safe side. We shall accept this assignment. However, we shall only make use of the assignment in the event that an application for insolvency proceedings of the Purchaser's assets has been made or if the Purchaser is unable to make payment or if the asset situation has deteriorated so far that inability to make payment is to be feared. If maintenance and inspection work needs to be carried out, then the Purchaser must carry this out in good time and at their own cost.
(3) The contract goods that are under title retention must not be pawned to third parties nor assigned for safety reasons, nor rented out, nor modified before payment in full of the secured demands.
(4) The Purchaser must advise us of the location of the contract goods and of all changes in the location of the contract goods without delay and must advise us without delay, and in writing, if and to what extent interventions by third parties are made in the contract goods that belong to us. If the third party is not able to reimburse us for the judicial and extra-judicial costs of a law-suit in accordance with Section 771 of the Civil Process Order (ZPO), then the Purchaser shall be liable for the financial loss we have incurred.
(5) In the event of behaviour of the Purchaser in breach of contract, in particular in the event of non-payment of the due purchase price, we shall be entitled, in accordance with legal regulations, to withdraw from the contract and / or to reclaim the contract goods based on title retention. The reclaiming shall not also include the declaration of the withdrawal. In addition, we shall be entitled just to reclaim the contract goods and to retain the right to withdrawal. If the Purchaser does not pay the due purchase price, we shall only be allowed to apply these rights if we have first set the Purchaser an unsuccessful payment deadline or if such a deadline setting is unnecessary according to the legal regulations.
Section 7 Title Retention with Entrepreneurs
(1) If the Purchaser is an entrepreneur, then the following conditions shall apply concerning title retention, in addition to the regulations quoted above in Section 6.
(2) The entrepreneur must allow us to view the contract goods at any time during their hours of business.
(3) The Purchaser shall not be entitled to sell and / or to process the contract goods that are subject to title retention in the course of proper business execution. In this case, the following supplementary stipulations shall apply:
(a) The title retention shall extend to products created by processing, mixing or combination of our contract goods to their full value where we count as the manufacturer. If, during processing, mixing or combination with third party contract goods, their title rights are retained, then we shall acquire joint property rights in relation to the invoice values of the processed, mixed or combined contract goods. In addition, the same shall apply to the resulting products as applies to the contract goods that are subject to title retention.
(b) The demands generated by the onward sale of the contract goods or the product on third parties shall be assigned to us by the Purchaser now, in total or to the level of our possible joint property ratio as per the above paragraph, to be on the safe side. We shall accept the assignment. The obligations quoted in Section 6 Paragraph 3 shall also apply in view of the assigned demands.
(c) The Purchaser shall remain empowered, alongside us, to recover the demand. We shall be committed not to recover the demand for as long as the Purchaser fulfils their payment obligations to us, does not enter payment default, no application for insolvency proceedings has been made and there are no other defects in their capability to perform. If this is the case, however, we shall be entitled to demand that the Purchaser informs us of the assigned demands and their debtors, makes all necessary statements for recovery, surrenders the associated documents and advises the debtor (third party) of the assignment.
(d) If the realisable value of the securities exceeds our demands by more than 10 %, then we shall release securities at our discretion upon request by the purchaser.
Section 8 Claims for Defects by the Purchaser, Design and Shape Modifications, Deviations in Colour Hue
(1) Unless agreed otherwise below, the legal regulations shall apply to the rights of the Purchaser in the event of the presence of a material defect or a legal defect (including incorrect and inadequate deliveries and improper assembly or defective assembly instructions). In all cases, the special regulations for end delivery of the contract goods to a consumer (Sections 476 479 BGB) shall remain unaffected, provided that the Purchaser is not an entrepreneur.
(2) The basis of our defect liability shall primarily be the agreement made concerning the consistency of the contract goods. The agreement concerning the consistency of the contract goods shall be comprised of all the product descriptions that are a constituent part of the individual contract. The rights to design and shape modifications and deviations in the colour hue shall be reserved, provided that the contract goods are not changed extensively, that the modifications are reasonable for the Purchaser and that the contract goods can still be used unmodified for the agreed purposes. The details in the descriptions concerning performance, weight, operating costs, use, speed etc. shall be seen only as an approximation and shall not constitute an agreement to consistency in accordance with Section 434 Paragraph 1 P. 1 BGB.
(3) Should the consistency not have been agreed, the assessment shall be made in accordance with the legal regulations as to whether a defect is present or not (Section 434 Paragraph 1 P. 2, 3 BGB). However, we shall not accept liability for public statements by the manufacturer of contract goods, or other third parties for all contract goods (e.g. advertising statements).
(4) If the Purchaser is an entrepreneur, then their defect claims shall require the precondition that they have met their legal investigation obligations and obligation to give notice of defects (Sections 377, 381 German Commercial Code (HGB)). If a defect becomes apparent during the investigation, or afterwards, then we must be informed of this in writing and without delay. If the Purchaser neglects proper investigation and / or the notification of the defects, our liability for the defect not disclosed shall be excluded.
(5) If the delivered item is defective, we shall be able initially to choose whether we carry out subsequent fulfilment by elimination of the defect (repair) or by the supply of a defect-free item (replacement). Our right to refuse the selected type of subsequent fulfilment according to legal regulations shall remain unaffected.
(6) We shall be entitled to make the outstanding subsequent replacement subject to the fact that the Purchaser has made the outstanding payment. The Purchaser shall be entitled, however, to retain part of the purchase price to the appropriate proportional value of the defect.
(7) The Purchaser must give us the time and opportunity for the outstanding subsequent fulfilment and must, in particular, give us the contract goods upon which the complaint is based for test purposes. In the event of replacement, the Purchaser must return the defective contract goods to us, in accordance with the legal regulations.
(8) We shall pay the expenses incurred in testing and for subsequent fulfilment, particularly the transport, routing, working and material costs, provided that there is actually a defect present. If the demand for elimination of a fault by the Purchaser turns out to be unjustified, we shall be entitled to demand reimbursement of the resulting costs by the Purchaser.
(9) In urgent cases, e.g. in the event of the endangering of operational safety or for the deflection of disproportionate damage, the Purchaser shall be entitled to eliminate the defect themselves and to demand reimbursement of the objectively required expenditure. We shall be informed of self-help of this type without delay, if possible in advance. Self help rights shall not exist if we would have been entitled to refuse a corresponding subsequent fulfilment in accordance with the legal regulations.
(10) If the subsequent fulfilment fails or if a reasonable deadline set by the Purchaser for subsequent fulfilment expires without success or if it is unnecessary in accordance with the legal regulations, the Purchaser shall be entitled to withdraw from the purchase contract or to reduce the purchase price. However, there shall be no right to withdrawal in the case of an insignificant defect.
(11) Claims by the Purchaser to reimbursement of damages or to replacement of unsuccessful expenditure shall only exist in accordance with Section 9 and shall otherwise be excluded.
Section 9 Other Liability
(1) Unless specified otherwise by these GSC, including the following stipulations, we shall be liable in the event of an infringement of the contractual and extra-contractual obligations in accordance with the applicable legal regulations.
(2) We shall be liable for reimbursement of damages - irrespective of the legal cause - in the case of intent or an act of gross negligence. In the case of simple negligence, only we shall be liable
(a)for damages from the infringement of life, the body or the health and
(b)for damages from the infringement of a significant obligatory duty, whereby our liability shall be limited to the foreseeable typical damages. A significant obligatory duty shall be regarded as being a duty, only the fulfilment of which makes possible the proper execution of the contract and whose compliance with the partner to the contract regularly relies upon and is allowed to rely.
(3) The limitations to liability arising from Paragraph 2 shall not apply if we have fraudulently concealed a defect or if we have taken over a guarantee of the consistency of the contract goods and for the claims of the purchaser in accordance with the law of
(4) We shall not accept liability for natural wear and damage that can be attributed to negligent or improper handling of the contract goods.
(5) If we supply replacement parts, we shall not be liable for damage caused by incorrect installation of the supplied replacement parts.
(6) The Purchaser shall only be permitted to withdraw or cancel on account of an infringement of duty that does not consist of a defect, if we are responsible for the infringement of the duty. The right to free cancellation by the purchaser (in particular in accordance with Sections 651 649 BGB) shall be excluded. As for the rest, the legal stipulations and legal consequences shall be applicable.
Section 10: Statute of Limitation
(1) In deviation from Section 438 Paragraph 1 No. 3 BGB, the general statute of limitation for claims arising from a material or legal defect shall be one year from the delivery (arrival) of the contract goods, provided that the Purchaser is an entrepreneur. If an acceptance has been agreed, the statute of limitation shall start at the point of acceptance.
(2) If, on the other hand, the Purchaser is a consumer, the general statute of limitation for claims arising from a material or legal defect shall be two years from delivery (arrival) of the contract goods. If an acceptance has been agreed, the statute of limitation shall start at the point of acceptance.
(3) Items that are used for construction in their normal method of use shall not be supplied by us. In the case of fraud by the supplier, the special legal regulations (Section 438 Paragraph 3 BGB) shall remain unaffected, including claims in supplier recourse for the end delivery to a consumer (Section 479 BGB).
(4) The above statutes of limitation of purchase law shall also apply to contractual and extra-contractual claims by the Purchaser that are based on a defect in the contract goods, unless the application of the regular legal statute of limitation (Sections 195, 199 BGB) would lead to a shorter statute of limitation in an individual case. The statutes of limitation of the product liability law shall be unaffected in all cases. Otherwise, the legal statute of limitations in accordance with Section 9 shall apply to claims for reimbursement of damages.
Section 11 Choice of Law and Legal Domicile
(1) For these GSC, and for all legal relationships between us and the Purchaser, the law of the Federal Republic of Germany shall apply, with the exclusion of international and supranational (contract) legal regulations, particularly the UN Purchase Law. Preconditions and effects of the retention of title in accordance with Section 6, on the other hand, shall be subject to the law at the specific location of the items, provided that this means that the selected choice of law is prohibited or ineffective with regard to German Law.
(2) If the Purchaser is a merchant in the sense of the HGB, a judicial person in public law or a public legal fund asset, the exclusive - and international - legal domicile for all disputes
arising directly or indirectly from the business relationship shall be Oldenburg (Oldb.). If the Purchaser does not have a general domestic legal domicile, the same shall apply. The same shall also apply if the Purchaser does not have a general domicile domestically, if they move their domicile or normal place of residence from the domestic area or if their domicile or normal place of residence is unknown at the commencement of proceedings. However, we shall also be entitled to commence proceedings in the general legal domicile of the Purchaser.