General Terms and Conditions of Sale and Delivery of Meusburger Fahrzeugbau GmbH and Meusburger Vertrieb GmbH
I. Scope of Application
- The following General Terms and Conditions of Sale and Delivery shall apply exclusively to all our deliveries and services. Deviating terms and conditions of purchase of the customer, which are not expressly acknowledged by us, shall not be binding, even if we do not expressly object or perform the delivery or service to the purchaser without reservation in the knowledge of such deviating terms and conditions.
- These Terms and Conditions of Sale and Delivery shall also apply to all future transactions with the purchaser, without the need for special reference thereto, unless the validity of new Terms and Conditions of Sale and Delivery is expressly indicated.
- Amendments, deviations, and other collateral agreements must be recorded in writing. This shall not exclude the possibility of verbal collateral agreements.
- These Terms and Conditions of Sale and Delivery shall apply to contractors, legal entities under public law, and special funds under public law.
II. Offer and Conclusion of Contract
- Our offers are subject to change and non-binding. The purchaser is bound to their order for a maximum of 6 weeks.
- A contract shall only be concluded by our written order confirmation within this period. The documents belonging to the offer, such as catalogues, brochures, circulars, advertisements, illustrations, price lists, drawings, weights and dimensions, information on services, operating costs, speed, consumption, and the like are only approximate unless they are expressly marked as binding in writing.
- In the case of delivery of vehicles in mint condition, the purchaser undertakes not to assign the claims arising from the purchase contract and not to resell the delivery item within 6 months of receipt of the delivery item (holding period). This shall not apply if unforeseen or extraordinary circumstances occur in which it would be unreasonable to keep the delivery item (e.g., considerable damage to the vehicle due to an accident or emergency sale) or if we agree to the assignment or sale in writing in advance. If the vehicle is sold for commercial purposes or to a commercial reseller contrary to the above provision, the purchaser shall be obliged to pay us a contractual penalty in the amount of 20% of the net list price at the time of the sale.
- We retain ownership and copyright of cost estimates, drawings, plans, and other technical documents which are handed over to the purchaser before and after conclusion of the contract. The purchaser may not use, copy, duplicate, or hand them over or disclose them to third parties without our consent. At our request or if the order is not placed, they must be returned immediately.
- If we use signs or numbers to designate the order or the ordered object of purchase, no rights can be derived from this alone.
III. Scope of Delivery, Cardinal Obligations
- Our written order confirmation shall be decisive for the scope of delivery. It defines the essential obligations (cardinal obligations) according to Art. 433 of the BGB, the German Civil Code.
- We reserve the right to make changes and product improvements regarding the design, the use of materials, and the execution in accordance with technical progress, provided that the delivery item is not substantially or adversely changed as a result and the change is reasonable for the purchaser.
IV. Delivery Period
- Promised or confirmed delivery dates are always approximate and non-binding. They will be adhered to by us as far as possible, with the exception that they are expressly confirmed by us in writing as a fixed date.
- Delivery periods shall generally commence on the date of dispatch of the order confirmation, but not before all performance requirements to be met by the purchaser have been met, in particular not before the purchaser has provided the technical requirements, packaging samples, test materials and approvals to be provided by the purchaser and not before receipt of down payments which are due as agreed after receipt of the order. A transaction for delivery by a fixed date shall only be deemed to exist if this has been expressly agreed. The delivery period shall be deemed to have been observed if the delivery item has left the factory or notification of readiness for dispatch has been given by the time the delivery period expires.
- If we have specified fixed delivery periods (firm deal) and these have been made the basis for placing the order, these periods shall be extended by the duration of the hindrance if we are prevented from fulfilling this obligation by the occurrence of unforeseen events or force majeure (Section X.) and which we were unable to avert even with reasonable care in the circumstances of the case. This shall also apply if the circumstances occur at suppliers. The same shall apply if the purchaser fails to fulfil any obligations to cooperate. In this case, we are entitled to charge storage costs of 1% of the invoice amount for each month from the purchaser after the expiry of 7 days.
- We are entitled to make partial deliveries within the stated delivery period, insofar as this does not result in disadvantages for the use.
- 6 weeks after exceeding a non-binding delivery date or a non-binding delivery period, the purchaser may request us in writing to deliver within a further 4 weeks. With this reminder we are in arrears. If this deadline is not met, the purchaser is entitled to withdraw from the contract within the framework of the statutory provisions.
- If we are culpably in arrears with the delivery and if the purchaser suffers damage as a result, they shall be entitled to demand a lump-sum compensation for the delay. This shall amount to 0.5% for each full week of delay, but in total not more than 5% of the value of that part of the subject matter of the contract which cannot be used on time or in accordance with the contract because of the delay. Further claims for delay shall be determined exclusively in accordance with Section IX of these Terms and Conditions.
- If the purchaser is in default of acceptance or if the shipment is delayed at the request of the purchaser or by omission of required duties to cooperate, e.g. delivery of installation, conversion, and add-on items, the purchaser shall be charged, beginning one week after notification of readiness for shipment, for the costs incurred by the storage, but in the case of storage in our works at least 1% of the invoice amount for each month. In addition, we may exercise our statutory rights. When asserting a claim for damages, we shall be entitled to demand either compensation for the damage actually incurred or, optionally, lump-sum damages in the amount of 15% of the net purchase price, unless the purchaser proves that the damage was less. Alternatively, we shall also be entitled to dispose of the delivery item otherwise after granting a grace period which expires fruitlessly and to supply the purchaser with an appropriate grace period. Compliance with the delivery period shall be subject to the fulfilment of the contractual obligations of the purchaser.
V. Transfer of Risk
The transfer of risk to the purchaser takes place at the latest when the delivery item is made available for dispatch "ex works Meusburger Fahrzeugbau GmbH". If the shipment is delayed due to circumstances for which the purchaser is responsible, the risk is transferred to the purchaser from the day of readiness for shipment. Insurance against breakage, transport, and fire damage shall only be taken out at the purchaser’s request and expense.
VI. Prices, Price Changes, and Payments
- The price stated in the order confirmation is binding. Packaging, postage, loading, freight, insurance, customs duties, levies and fees of a similar nature and other ancillary costs (e.g., storage, third-party inspection) are not included therein in the absence of a separate agreement and shall be borne by the purchaser. In addition, agreed ancillary services shall be charged additionally. Value added tax (VAT) at the respective statutory rate shall be added to the prices and shall be shown separately on the invoice.
- If we do not ship the goods ourselves, foreign customers shall themselves provide the export certificate required for VAT exemption and send it to us. If the foreign customer does not provide the export certificate, he shall pay the value added tax to us.
- If the agreed price at the time of performance has changed due to a change in the statutory minimum wage, ancillary wage costs, energy costs for electricity and gas, and/or costs for raw materials and supplies (e.g., costs for aluminium, copper, iron, steel, rubber, PVC, tarpaulins, wood) or due to a change in operating taxes of our own costs or the fees charged by a third party involved in the performance of the service increases or decreases by more than 2%, we reserve the right to adjust the price upwards or downwards in proportion to the pro rata cost increases. If, with regard to the cost factors to be taken into account in the pricing, there are partial charges, a balance shall be made. If the price adjustment exceeds what is economically reasonable, each party shall have the right to withdraw from the contract in accordance with Section 313 (3) BGB. This right must be asserted immediately after notification of the increased price. We shall provide individual evidence of the cost reductions or increases at the request of the purchaser by disclosing our original price calculation. However, a price increase for delivery within the first four months after conclusion of the contract is excluded.
- The prices to be paid shall be adjusted at our reasonable discretion (Section 315, BGB) in line with the development of the costs that are decisive for the price calculation. When exercising reasonable discretion, the respective points in time of a price change shall be selected in such a way that cost reductions are not taken into account according to standards that are less favourable for the purchaser than cost increases. Cost reductions will therefore have at least the same effect on prices as cost increases.
- Unless otherwise agreed, payments shall be made immediately net cash without any deductions upon delivery of the object of purchase - however, no later than 8 days after receipt of the notice of availability - and handing over or sending of the invoice. Other means of payment shall only be accepted on account of performance and all collection and discount charges shall be charged. The legal regulations concerning the consequences of default apply.
- In the case of partial deliveries permitted under IV No. 3, we shall also be entitled to issue partial invoices.
- In the event of default in payment or if our claims are jeopardized by a deterioration in the creditworthiness of the purchaser, we shall be entitled to demand securities or to make outstanding deliveries only against advance payment or against the provision of securities.
- The purchaser shall only be entitled to a right of retention or a right of set-off insofar as their counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, the purchaser shall only be entitled to exercise a right of retention if their counterclaim is based on the same contractual relationship.
VII. Retention of Title
- We retain title to the delivery items until all claims to which we are entitled against the purchaser within the scope of the business relationship have been settled, even if the specific delivery has already been paid for.
We shall be obliged to release the securities to which we are entitled at the request of the purchaser insofar as the realizable value of our securities exceeds the respective claims to be secured by more than 10%. It shall be presumed that this requirement is met if the estimated value of the securities to which we are entitled equals or exceeds 150% of the value of the secured claims. The selection of the securities to be released shall be incumbent upon us.
- In the event of breaches of duty by the purchaser, in particular in the event of default in payment, we shall be entitled, even without setting a deadline, to demand the surrender of the delivery item and/or - if necessary, after setting a deadline - to withdraw from the contract; the purchaser shall be obliged to surrender the delivery item. The demand for surrender of the delivery item does not constitute a declaration of withdrawal by us unless this is expressly declared.
- As long as the retention of title exists, the purchaser may not modify, rework, or pledge the delivery item, nor assign it as security or contractually grant third parties use of it without our written consent. In the event of infringement, the claims accruing to the purchaser shall be deemed to have been assigned to us. Furthermore, in the event of a sale of the delivery item for commercial purposes or to a commercial reseller, the purchaser shall be obliged to pay us a contractual penalty of 20% of the net list price at the time of the sale.
- The purchaser is obliged to insure the reserved goods at their own expense against theft, machine breakage, fire, water and other damage for the duration of their obligation to us and to provide us with evidence of this upon request. The purchaser hereby irrevocably assigns to us all their rights under the relevant insurance contracts until complete performance of their obligations. If the purchaser fails to meet their obligations under the preceding paragraph, we shall have the right to take out the aforementioned insurance policies to the extent we deem necessary at the purchaser's expense, subject to the provisions that we shall be directly entitled to the rights under the insurance policies without assuming any obligation to insure the delivery item on behalf of third parties.
- For the duration of the retention of title, the purchaser shall be obliged to keep the object of purchase in proper condition and to have all maintenance and necessary inspection work provided for by us - apart from emergencies - carried out by us or by a workshop recognized by us for the servicing of the object of purchase. The costs are to be borne by the purchaser.
- In case of seizure as well as confiscation of the delivery item or other disposition by third parties, the purchaser must inform us immediately in writing and to bear the costs of measures to remedy the interference, in particular of intervention proceedings, if they cannot be recovered from the other party. In addition, the purchaser is obliged to inform the pledgee of our property rights in the event of seizure or attachment.
- In the event of a combination of the delivery item subject to retention of title with another item of the purchaser to form a new uniform item, we shall be entitled to co-ownership of the new item in the ratio of the value of the delivery item to the invoice value of the other item.
In the event of default in payment on the part of the purchaser, we shall be entitled to demand the return of the entire item of which we have co-ownership and to sell it. The proceeds of the sale shall be set off against our total outstanding claims against the purchaser. The excess proceeds shall be paid to the purchaser after deduction of a lump sum of 10% of the sales proceeds for collection, handling, and utilization. We are entitled to charge higher utilization costs if we can prove that they have actually been incurred. Lower utilization costs are to be applied if the purchaser proves them.
- We provide warranty for the object of purchase in accordance with the statutory provisions. The warranty period for new items is 1 year. For used items, the warranty is excluded. This warranty period does not apply if the law for buildings and things for buildings, recourse claims, and construction defects provides longer periods. These excluded cases are subject to a limitation period of 3 years, for used items of 1 year.
- In the event of a defect, we shall be entitled - to the extent permitted by law - to choose between repairing the object of purchase in our workshop in 94535 Eging am See or making a new delivery to the place of performance stipulated in the contract. If the subsequent performance fails, the purchaser shall be entitled to reduce the purchase price or, with their choice, to withdraw from the contract. Subsequent performance shall be deemed to have failed after the second unsuccessful attempt at subsequent performance. Replaced parts shall become our property.
- The assertion of warranty claims due to defects of our deliveries requires that the purchaser has duly fulfilled his commercial duties of inspection and notification of defects. The immediate notification of a defect must be made in writing.
- Deviations from specifications or agreements on consumption and performance do not constitute a defect in the delivery item, provided they do not exceed or fall below 10%.
- No warranty is given for damage due to natural wear and tear. Furthermore, no warranty is given for damage caused by improper handling, e.g. by unsuitable use, non-observance of the operating and maintenance instructions, faulty assembly or commissioning, faulty repair, excessive stress, use of unsuitable operating materials or materials, insofar as these are not attributable to fault on our part.
- In the event of rectification of defects, we shall only be obliged vis-à-vis companies to reimburse all labour and material costs required for the purpose of rectifying the defect. All costs beyond this, such as in particular transport and travel costs as well as loss of use/continuation costs/costs for a replacement vehicle, shall be borne by the business customer themselves - insofar as legally permissible - in deviation from Art. 439 II BGB or Art. 437 No. 3, 280 I BGB.
IX. Liability, Disclaimer
- We shall be liable to the purchaser in accordance with the following provisions for damages, irrespective of the legal grounds:
a) in the event of intent, our own gross negligence, and that of our executive employees, to the full amount of the damage;
b) in the event of gross negligence on the part of simple vicarious agents, limited to the typical foreseeable damage, unless we are able to exempt ourselves from this by virtue of trade usage;
c) in case of culpable violation of essential traffic obligations, limited to the typical foreseeable damage;
d) in case of any injury to life, body, and health of the purchaser without limitation.
Insofar as the damage is covered by an insurance policy taken out by the purchaser for the event of damage (with the exception of sum insurance), we shall only be liable for any associated disadvantages of the purchaser, e.g. higher insurance premiums or interest disadvantages until the settlement of the claim by the insurance company.
- Irrespective of fault, our liability shall remain unaffected in the event of fraudulent concealment of a defect, the assumption of a guarantee or a procurement risk and in accordance with the Product Liability Act.
- Personal liability of our legal representatives, vicarious agents, and our employees for damage caused by them through slight negligence is excluded.
- Insofar as liability for damages not based on injury to life, body, and health of the purchaser is not excluded for slight negligence, such claims shall become statute-barred within one year, beginning with the accrual of the claim or, in the case of claims for damages due to a defect, from the handover of the item.
- Any further liability for damages than provided for in Section IX shall be excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty and from tortious claims for compensation for damage to property arising from tortious acts.
X. Force Majeure
- "Force Majeure" means the occurrence of an event or circumstance that prevents a party from performing one or more of its obligations under the Contract if and to the extent that the party affected by the impediment proves that: (a) such impediment is beyond its reasonable control; and (b) it was not reasonably foreseeable at the time the contract was entered into; and (c) the effects of the impediment could not reasonably have been avoided or overcome by the affected party.
- Until proven otherwise, the following events affecting a party shall be presumed to meet the requirements under paragraph 1 lit. (a) and lit. (b) under paragraph 1 of this clause: (i) war (declared or undeclared), hostilities, attack, acts of foreign enemies, large-scale military mobilization; (ii) civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage, or piracy; (iii) currency and trade restrictions, embargo, sanctions; (iv) lawful or unlawful acts of government, compliance with laws or government orders, expropriation, seizure of works, requisition, nationalization; (v) plague, epidemic, pandemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems or power; (vii) general labour disturbances such as boycotts, strikes and lockouts, slowdowns, occupation of factories and buildings.
- A party who successfully invokes this clause shall be released from its obligation to perform its contractual obligations and from any liability for damages or any other contractual remedy for breach of contract from the time when the impediment makes it impossible for it to perform; provided that this is notified without delay. If the notice is not given immediately, the release shall take effect from the time the notice reaches the other party. If the effect of the asserted impediment or event is temporary, the consequences just set forth shall apply only for so long as the asserted impediment prevents performance of the contract by the affected party. If the duration of the asserted impediment has the effect of substantially depriving the parties of that which they had a right to expect by virtue of the contract, either party shall have the right to terminate the contract by giving notice to the other party within a reasonable period of time. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the hindrance exceeds 90 days.
XI. Place of Performance, Jurisdiction, and Applicable Law
- Place of performance for the delivery of the object of purchase is our registered office.
- In the event of all disputes arising from the contractual relationship, including claims based on bills of exchange and checks, if the purchaser is a merchant, a legal entity under public law, or a special fund under public law, we may choose to file suit with the court having jurisdiction for the headquarters or for our branch office carrying out the delivery. We are also entitled to take legal action at the headquarters of the purchaser.
- Our Terms and Conditions of Sale and Delivery and the entire legal relationship between us and the purchaser shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of laws provisions and the UN Convention on Contracts for the International Sale and Purchase of Goods (CISG).
- All disputes arising out of or in connection with this agreement and its validity shall be settled by an ordinary court of law.
XII. Other, Written Form Requirement
- Transfers of rights and obligations under the contract require our prior written consent to become effective.
- Should any provision of these Terms and Conditions of Sale and Delivery or any provision within the scope of other agreements be or become invalid or unenforceable, this shall not affect the validity of all other provisions or agreements. Art. 139 of the BGB shall be waived to this extent. In the event that a provision is or becomes invalid or unenforceable, the parties agree to find a provision that comes as close as possible to the economic purpose of the contract or other agreements and that is valid and enforceable. If an adjustment of the contract or other agreement is not possible or unreasonable, Art. 313 BGB (disturbance of the business basis) shall apply.
- Amendments to the contract or any other agreement must be made in writing. This also applies to the amendment of the written form clause itself. Verbal collateral agreements are invalid.