General Terms and Conditions of Sale and Delivery of Meusburger Fahrzeugbau GmbH and Meusburger Vertrieb GmbH
I. Scope of application
- All goods delivered and services rendered by us shall be exclusively subject to the following General Terms and Conditions of Sale and Delivery. Any differing terms and conditions of purchase used by the Buyer which are not expressly acknowledged by us are of a non-binding nature even if we do not expressly object to such terms and conditions or if we deliver goods or render services to the Buyer without reservation although we are aware of such differing terms and conditions.
- These Terms and Conditions of Sale and Delivery shall also apply to any future business transactions carried out with the Buyer without requiring these Terms and Conditions to be separately stated as the basis of such transactions unless the application of any new Terms and Conditions of Sale and Delivery is indicated.
- Any amendments, deviations and other ancillary agreements must be recorded in writing. The possibility of ancillary verbal agreements is not excluded thereby.
- These Terms and Conditions of Sale and Delivery shall apply towards companies, legal persons under public law and towards a special public fund.
II. Offer and conclusion of contract
- Our offers are non-binding.The Buyer shall be bound by a purchase order for no longer than six weeks.
- A contract shall not be deemed concluded until we acknowledge the order in writing during the said period.The documents which form part of the offer such as catalogues, brochures, circular letters, advertisements, illustrations, price lists, drawings, information on weights and measures, information on services, operating costs, speed, consumption and similar factors are only applicable as approximate values unless they are expressly identified in writing as being binding.
- Regarding the delivery of vehicles in mint condition the Buyer undertakes not to assign any claims arising from the purchase agreement and not to resell the delivery item within a period of six months as of the receipt of the delivery item.The above shall not apply if any unforeseen or extraordinary circumstances occur in which the keeping of the delivery item would be unreasonable (for example, substantial damage to the vehicle due to an accident or emergency sale) or if we give our written consent to the assignment or sale in advance.If, contrary to the aforesaid provision, the vehicle is sold for commercial purposes or to a professional reseller, the Buyer shall pay liquidated damages to us at a rate of 20 % of the net list price valid at the time of the sale.
- We reserve the ownership and copyright of any cost estimates, drawings, plans and other technical documentation given to the Buyer before and after the conclusion of a contract.Without our consent, the Buyer shall not use, copy, reproduce such documents or disclose or hand over such documents to third parties.At our request or if no order is placed, such documents shall be returned without delay.
- If we use any characters or numbers to identify the order or the object of purchase ordered, no rights can be derived from this fact alone.
III. Scope of supply
- The scope of supply is determined by our written acknowledgement of order.
- We reserve the right to make any modifications or improvements regarding the design, use of materials and execution in accordance with technical progress unless the delivery item is changed materially or to its detriment thereby and if such change is reasonable for the Buyer.
IV. Period of delivery
- Time shall only be of the essence for the transaction if this has been expressly agreed upon.Any period of delivery agreed shall commence on the sending date of the acknowledgement of order.The period of delivery shall be deemed observed if the delivery item has left the manufacturing facility or notice of readiness for shipment has been given upon or before the expiry of such period.
- If we have stated any periods of delivery and if they have been made a basis for the placement of the order and if we are prevented from fulfilling this obligation due to the occurrence of any unforeseen events which we are unable to avert even with the due diligence reasonable in the circumstances of the case (e.g. war, force majeure and labour disputes, particularly including strike and lockout), such periods shall be extended by the duration of such obstruction.This shall also apply if such circumstances occur to outside suppliers.The same shall apply if the Buyer fails to comply with any duties to cooperate.In this event we are entitled, after the expiry of a period of seven days, to charge the Buyer for storage costs at a rate of 1% of the invoice amount per month.
- We are entitled to make partial deliveries within the period of delivery stated unless this results in any disadvantages for the use of the item.
- Six weeks after a non-binding delivery date or a non-binding period of delivery has been exceeded, the Buyer may request us in writing to deliver within an additional period of four weeks.Upon this demand notice we shall be in default.If the said time limit is not kept, the Buyer is entitled to cancel the contract subject to the statutory regulations.
- If we are in default with our delivery and this results in any damage to the Buyer, the Buyer is entitled to demand lump-sum compensation for damage resulting from default.For each full week of the delay, such compensation shall equal 0.5%, but shall not exceed a total of 5%, of the value of that part of the subject of the contract which cannot be used in due time or cannot be used as agreed due to default.Any further claims due to default are exclusively determined by article IX of these Terms and Conditions.
- If the Buyer is in default of acceptance or if dispatch is delayed at the Buyer’s request or by its failure to comply with any duties to cooperate required in the case, e.g. shipment of fittings, modifications or extensions, the Buyer will be charged for the costs incurred for storage, at a rate of no less than 1% of the invoice amount for each month if the items are stored at our facilities, starting one week after the notice of readiness for shipment has been given.In addition, we may exercise our statutory rights.Regarding the assertion of any claim for damages, we are entitled to either claim compensation for the damage actually incurred or, alternatively, lump-sum damages at a rate of 15% of the net purchase price unless the Buyer demonstrates that the damage was lower.Alternatively we are entitled to otherwise dispose of the delivery item after granting an additional period which expires without result and to supply the Buyer within an appropriate additional period of time.The keeping of the period of delivery requires the prior fulfilment of the Buyer’s contractual obligations.
V. Passing of risks
The risks shall pass to the Buyer no later than upon the provision of the delivery item for dispatch “ex works Meusburger Fahrzeugbau GmbH“.If dispatch is delayed due to any circumstances for which the Buyer is responsible, the risk shall pass to the Buyer as of the date of readiness for shipment.Insurance against damage caused by breakage, transport and fire shall be effected at the instance and expense of the Buyer.
VI. Prices and payments
- The price stated in the acknowledgement of order is binding.In the absence of a separate agreement, packaging, postage, dispatch, freight, insurance, customs duties, taxes and fees of a similar type as well as other additional expenses (e.g. for storage, third-party inspections) shall not be included therein and shall be at the expense of the Buyer.Furthermore, any additional services agreed are charged in addition.Turnover tax (value added tax) at the statutory rate shall be added to the prices and separately shown on the invoice.
- Foreign Buyers shall obtain and forward the export certificate required for their exemption from turnover tax themselves unless we ourselves dispatch the goods.If the foreign Buyer fails to submit the export certificate, the Buyer is required to pay turnover tax to us.
- If the agreed price has increased before the services are rendered due to a change in the market price or an increase in fees charged by any third party involved in the services rendered, such higher price shall be valid.If this price is 20% or more above the agreed price, the Buyer is entitled to cancel the contract.This right must be asserted without delay after notice has been given of the increased price.
- Except as otherwise agreed upon, any payments must be effected immediately upon delivery of the object of purchase – however no later than eight days after receipt of the delivery notification – and submission or sending of the invoice without any deduction, net cash.Any other methods of payment are only accepted as a conditional payment and all collection and discount charges will be invoiced.The statutory regulations regarding the consequences of default shall apply.
- Regarding the partial deliveries permissible under art. IV no. 3, we are entitled to issue partial invoices.
- In the event of default in payment or a risk to our accounts receivable due to a deterioration in the credit standing of the Buyer, we are entitled to demand collateral security or, as the case may be, to deliver any outstanding shipments only against prepayment or against provision of collateral.
- The Buyer shall only have a right of retention or right of set-off to the extent that its counter-claims have been finally ascertained or are undisputed or have been acknowledged by us.Moreover, the Buyer shall only be entitled to exercise any right of retention if its counter-claim is based on the same contractual relationship.
VII. Reservation of title
- We reserve the title to the delivery items until satisfaction of all claims against the Buyer which we have as part of the business relationship, also in those cases where a specific shipment has already been paid.At the Buyer's request, the collateral to which we are entitled shall be released by us to the extent that the realisable value of our collateral exceeds each claim secured by such collateral by more than 10%.It is assumed that this condition has been fulfilled if and when the estimated value of the collateral to which we are entitled reaches or exceeds 150% of the value of the claims secured.We are responsible for choosing the collateral which is to be released.
- In the event of any breach of duty by the Buyer, particularly including default in payment, we are entitled even without setting a time limit to demand that the delivery item be returned to us and/or – after setting a time limit if required – to cancel the contract; the Buyer is required to return such items.The demand for the return of the delivery item does not include a notice of cancellation by us unless this is expressly stated.
- While the reservation of title is effective the Buyer shall neither change nor rework nor pledge nor transfer by way of security nor grant third parties a contractual right of use of the delivery item without our written consent.In the event of non-compliance, the claims which have accrued to the Buyer shall be deemed assigned to us.Furthermore, the Buyer shall pay to us liquidated damages at a rate of 20% of the net list price at the time of the sale if the delivery item is sold for commercial purposes or to a professional reseller.
- The Buyer shall insure any reserved goods at the Buyer’s expense against theft, machine breakage, fire, water and other damage for the duration of the Buyer’s obligation towards us and shall demonstrate such insurance to us upon request.The Buyer hereby irrevocably assigns all its rights arising from the relevant insurance contracts to us until its obligations have been completely fulfilled.If the Buyer fails to fulfil its obligations pursuant to the foregoing paragraph, we are entitled to take out the aforesaid insurance policies to the extent deemed necessary by us and at the expense of the Buyer on the understanding that the we are directly entitled to the rights arising from such insurance contracts without thereby assuming the obligation to insure the delivery items on behalf of a third party.
- For the duration of the retention of title, the Buyer is required to keep the object of purchase in proper condition and to allow all maintenance work and necessary inspection work planned by us – except for emergencies – to be carried out by us or a workshop recognised by us for servicing the object of purchase.The costs shall be borne by the Buyer.
- In the event of a levy of execution and legal attachment of the delivery item or any other disposal by a third party, the Buyer shall notify us in writing without delay and assume the costs of any measures taken to rectify such official action, in particular, of any third-party action unless such costs can be collected by the opposing party.Moreover, the Buyer shall inform the pledgee of our rights of ownership in the event of a levy of execution of legal attachment.
- If the delivery item subject to a reservation of title is joined with another item of the Buyer to form a new integrated item we are entitled to co-ownership in the new item based on the same proportion as between the value of the delivery item and the invoice value of the other item.If the Buyer defaults on payment, we are entitled to reclaim and sell the complete item which is co-owned.The proceeds from the sale shall be applied against all our outstanding claims against the Buyer.The surplus proceeds will be paid out after deduction of a lump sum for the recovery, processing and realisation of 10% of the proceeds of the sale to the Buyer.We are entitled to determine higher realisation costs if we prove that they have actually been incurred.A lower amount of realisation costs must be determined if the Buyer demonstrates that the actual costs are lower.
- We give a warranty for the object of purchase in accordance with the statutory regulations.The warranty period is one year for new items.For used items any warranty is excluded.This warranty period shall not apply if the law provides for longer periods for structures and objects for structures, claims under a right of recourse and structural defects.These exceptions are subject to a statutory limitation period of three years, or one year for used items.
- In the event of any defect we – if legally permitted – are entitled to choose whether we remedy the defects of the object of purchase at our workshop in 94535 Eging am See or if we send a new shipment to the place of performance set forth in the contract.If supplementary performance has failed, the Buyer is entitled to reduce the purchase price or, at the Buyer’s option, to cancel the contract.The supplementary performance is deemed to have failed after the second unsuccessful attempt at supplementary performance.Any replaced parts will become our property.
- Any warranty claims for defects of our shipments may only be asserted on condition that the Buyer has properly fulfilled its duty to inspect the goods and give notice of defects as required on grounds of good business practice.Written notice of any defect found must be given without delay.
- Any deviations from specifications or agreements made regarding consumption and performance shall not constitute a defect of the delivery item unless such upward or downward deviation exceeds 10%.
- No warranty is given for damage due to natural wear and tear.Furthermore, no warranty is given for damage arising from improper treatment such as by inappropriate use, non-compliance with the operating and maintenance instructions, incorrect assembly and/or start-up, incorrect repair, excessive stress, use of inappropriate operating supplies or materials unless caused by our fault.
- In the event of a rectification of defects, we are only required towards companies to refund all costs of labour and materials required for the purpose of such rectification of defects.All other costs, including in particular transport and infrastructure costs as well as loss of use/costs for keeping required items available/costs of any replacement vehicle, shall be borne by the corporate Buyer itself – if and as far as legally permissible – notwithstanding sec. 439 II German Civil Code (BGB) or, as applicable, sections 437 no. 3, 280 I German Civil Code.
IX. Liability, exclusion of liability
- We will be liable to the Buyer subject to the following provisions for any damage, regardless of the legal basis thereof:
- in the event of gross negligence of persons ordinarily employed by us in performing our obligations, our liability shall be limited to the typically foreseeable damage unless we can be exempted by virtue of commercial usage;
- in the event of intent, gross negligence by ourselves or our executives, we shall be liable for the full amount of the damage;
- in the event of negligent breach of any commercially essential duty, our liability shall be limited to the typically foreseeable damage;
- in the event of any injury to health, life and limb of the Buyer, our liability shall be unlimited.
If the damage is covered by an insurance policy taken out by the Buyer for the damaging event (excluding fixed-sum insurance), we shall only be liable for any disadvantage to the Buyer related thereto, e.g. higher insurance premiums or less favourable interest rates until the claim is settled by the insurance company.
- Regardless of the fault, our liability shall remain unaffected in the event of fraudulent non-disclosure of a defect, the giving of a guarantee or assumption of a supply risk and subject to the act on product liability (Produkthaftungsgesetz).
- The personal liability of our legal representatives, the persons employed by us in performing our obligations and our employees for any damage caused by such persons due to slight negligence shall be excluded.
- If the liability for any damage not based on any injury to health, life and limb of the Buyer is not excluded for slight negligence, such claims shall become statute-bared after one year, calculated as of the creation of the claim or, as applicable, as of the delivery of the item in the event of a claim for damages for a defect.
- Any liability for damages beyond the extent provided in art. IX is excluded – regardless of the legal nature of the claim asserted.This shall apply in particular to any claims for damages in cases of culpa in contrahendo, due to other breach of duty and due to tortious claims for compensation for property damage from tort.
X. Place of performance, place of jurisdiction and applicable law
- The place of performance for the delivery of the object of purchase shall be our registered office.
- For all disputes arising from the contractual relationship including claims arising from bills of exchange or cheques, if the Buyer is a trader, a legal person under public law or a special public fund, we may bring an action before the court which is competent for our head office or, at our option, for the branch office which carries out delivery for us.We are also entitled to bring an action at the Buyer’s head office.
- The law of the Federal Republic of Germany, excluding its conflict of laws principles and the UN Convention for Contracts on the International Sale of Goods (CISG) shall apply to our Terms and Conditions of Sale and Delivery and all legal relations between us and the Buyer.
- All disputes arising from or in connection with this Contract or regarding its legal effectiveness shall be settled by a court of general jurisdiction.
- Any transfer of rights or obligations from this Contract shall only be effective with our prior written consent
Should any provision of these Terms and Conditions of Sale and Delivery or a provision under any other agreement be or become ineffective, the effectiveness of all remaining provisions or agreements shall remain unaffected thereby.