General Terms and Conditions for the Sale of Brand-new Motor Vehicles
(Version of 04/2019)
The following terms and conditions apply to the offer and sale of brand-new motor vehicles from the seller (COBUS INDUSTRIES GmbH) to the buyer, if the buyer is an entrepreneur for whom the purchase belongs to the operation of its company, or a legal entity under public law or a special fund under public law.
1. Validity of the conditions / written form
1.1 These terms and conditions shall apply to all services, including future services, provided within the framework of an ongoing and intended business relationship, even if these terms and conditions are no longer expressly agreed with regard to a specific service. Other provisions, including but not limited to the buyer’s terms and conditions of business or purchase, shall not become part of the contract, even if the seller has not expressly objected to them.
1.2 Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these terms and conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation by the seller.
1.3 Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in cases of doubt as to the legitimacy of the declarant, remain unaffected.
2. Offer and conclusion of contract / transfer of rights and obligations of the buyer
2.1 The offers of the seller are subject to confirmation and non-binding. The order of the object of purchase by the buyer is considered as a binding contractual offer. Unless otherwise stated in the order, the seller shall be entitled to accept this contractual offer within one week of its receipt.
2.2 The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the object of purchase to the buyer.
2.3 The sales representatives of the seller are not authorised to represent the seller in legal transactions.
2.4 Transfers of rights and obligations of the buyer from this contract require the written consent of the seller.
Unless otherwise stated, the seller shall be bound by the prices contained in his offer for 30 days from the date thereof. The prices are understood to be net prices in EURO ex works plus packaging, the statutory value added tax, transfer costs for export deliveries, customs duties as well as fees and other public charges. Additional deliveries and services (e.g. transfer costs) shall be invoiced separately unless otherwise agreed.
4. Payment / default
4.1 The purchase price and prices for ancillary services shall be due for payment upon delivery of the object of purchase, but no later than 8 days after receipt of the notification of readiness for delivery and delivery or dispatch of the invoice.
4.2 If partial payments have been agreed, the entire remaining debt shall become due for payment immediately, irrespective of the due date of any bills of exchange, if the buyer is in arrears with 2 consecutive instalments in whole or in part, or if the buyer suspends his payments or if composition or insolvency proceedings have been applied for against his assets.
4.3 Money orders, cheques, bills of exchange and assignments of claims shall only be accepted after special agreement and only on account of payment, including all collection and discount charges.
4.4 The buyer can only assert rights of set-off and retention if the counterclaim of the buyer is undisputed or a legally binding title exists.
4.5 If the buyer is in arrears with the payment, if partial payments with 2 successive instalments are agreed, the seller can withdraw from the contract after setting a reasonable grace period and claim damages for non-performance.
5. Delivery / delay in delivery
5.1 The delivery dates or delivery periods, which may be agreed as binding or non-binding, must be stated in writing. Delivery periods begin with the conclusion of the contract. If subsequent changes are agreed, a new delivery date or delivery period shall also be agreed if necessary.
5.2 6 weeks after a non-binding delivery date or a non-binding delivery period has been exceeded, the buyer may request the seller in writing to deliver within a reasonable period of time. This period is reduced to 2 weeks for vehicles which are available at the seller. Upon receipt of the request, the seller shall be in default. In addition to delivery, the buyer can only demand compensation for damage caused by delay if the seller is guilty of intent or gross negligence. In the event of default, the buyer may also set the seller a reasonable grace period in writing, stating that it will refuse acceptance of the object of purchase after expiry of the grace period. After unsuccessful expiration of the grace period, the buyer is entitled to withdraw from the purchase contract by written declaration and in case of intent or gross negligence to claim damages for non-performance. The claim to delivery is excluded in this case.
5.3 If a binding delivery date or a binding delivery period is exceeded, the seller shall be in default as soon as the delivery date or the delivery period is exceeded. The buyer’s rights shall then be determined in accordance with the third sentence et seq. of Section 5.2.
5.4 The seller shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for the seller not only temporarily – this includes in particular strikes, lock-outs, official orders, etc., even if they occur at the seller’s suppliers or their sub-suppliers – even in the case of bindingly agreed deadlines and dates. They entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period, or to withdraw from the contract in whole or in part because of the part not yet fulfilled. If the hindrance lasts longer than 6 weeks, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if the seller is released from his obligation, the buyer cannot derive any claims for damages from this. The seller can only invoke the aforementioned circumstances if he notifies the buyer immediately.
5.5 The seller reserves the right to make changes to the design or shape, deviations in colour and changes to the scope of delivery during the delivery period, provided that the object of purchase is not significantly changed and the change is reasonable for the buyer.
5.6 Information contained in descriptions of the scope of delivery, appearance, performance, dimensions and weights, consumption of operating materials, operating costs, etc. of the object of purchase that are valid at the time of conclusion of the contract shall form part of the contract; they shall be regarded as approximate and do not constitute warranted characteristics, but shall serve as a yardstick for determining whether the object of purchase is free from defects in accordance with Section 8.1, unless an expressed warranty is given in accordance with Section 1.2. If the seller uses signs or numbers to designate the order or the object of purchase ordered, no rights can be derived from this alone.
6.1 The buyer has the right to inspect the object of purchase at the agreed place of acceptance within 8 days of receipt of the notification of readiness and the obligation to accept the object of purchase within this period. If the buyer is in default of acceptance, fails to cooperate or if delivery is delayed for other reasons for which the buyer is responsible, the seller shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, the seller shall be entitled to charge a flat-rate compensation amounting to 0.1% of the net price per calendar day from the occurrence of the delay, but not exceeding 2% of the net price, plus any value added tax. The proof of a higher damage and the legal claims of the seller (including but not limited to reimbursement of additional expenses, appropriate compensation, termination) remain unaffected; however, the flat rate is to be set off against further monetary claims. The buyer shall be entitled to prove that the seller has incurred no damage at all or only considerably less damage than the above flat rate.
6.2 If the buyer remains in arrears with the acceptance of the object of purchase for longer than 14 days from receipt of the notification of readiness, the seller is entitled, after setting a grace period of 14 days, to withdraw from the contract and claim damages for non-performance.
6.3 The setting of a grace period is not necessary if the buyer seriously and finally refuses acceptance or is obviously unable to pay the purchase price within this period.
6.4 If the seller demands compensation, this amounts to 10% of the purchase price. The compensation shall be set higher or lower if the seller proves a higher damage or the buyer proves that a lower damage or no damage at all has occurred.
7. Retention of title
7.1 The object of purchase shall remain the property of the seller until settlement of the claims to which the seller is entitled on the basis of the purchase contract. The retention of title also applies to the claims which the seller has against the buyer from his current business relations.
7.2 For the duration of the retention of title, the buyer shall be entitled to possess and use the object of purchase as long as he meets his obligations under the retention of title in accordance with the following provisions of this section and is not in default of payment. In the event of breach of contract by the buyer, including but not limited to default in payment, the seller shall be entitled to withdraw from the contract and demand the return of the object of purchase, as well as to claim damages.
7.3 As long as the retention of title exists, a sale, pledging, transfer by way of security, leasing or any other transfer of the object of purchase as well as its modification which impairs the security of the seller is only permissible with the prior written consent of the seller.
7.4 In the event of seizure by third parties, in particular in the event of seizure of the object of purchase or the exercise of the entrepreneurial lien of a workshop, the buyer must notify the seller immediately in writing and inform the third party immediately of the seller’s retention of title. The buyer shall bear all costs which must be incurred for the cancellation of the seizure and for the recovery of the object of purchase, insofar as they cannot be collected from third parties.
7.5 For the duration of the retention of title, the buyer shall take out insurance with an appropriate deductible, subject to the proviso that the rights arising from the insurance contract shall accrue to the seller. If the buyer fails to comply with this obligation, the seller may take out the insurance himself at the buyer’s expense, disburse the premium amounts and collect them as part of the claim under the purchase contract. Unless otherwise agreed, the insurance benefit shall be used in full for the repair of the object of purchase. If, in the case of serious damage, repair is waived with the consent of the seller, the insurance benefit shall be used to repay the purchase price and the prices for ancillary services of the seller.
7.6 The buyer is obliged to keep the object of purchase in proper condition for the duration of the retention of title, to have all maintenance work and necessary repairs planned by the manufacturer carried out without delay – apart from emergencies – by the seller or by a workshop recognised by the seller for servicing the object of purchase.
8.1 The seller warrants that the goods will be free from defects in accordance with the general rules of technology of the type of the object of purchase for 24 months from the transfer of risk in accordance with the provisions of this section.
8.2 The buyer is entitled to the removal of defects and damages caused by them to other parts of the object of purchase (repair). The following applies to the settlement:
a) The buyer may assert the claims with the seller or with companies recognised by the seller for servicing the object of purchase. The buyer must either notify the relevant company of any defects in writing or have them recorded by it immediately after they have been discovered.
b) Repairs must be carried out immediately in accordance with the technical requirements by replacing or repairing defective parts without charging the necessary wage, material and freight costs. Replaced parts become the property of the seller. If the repair necessitates additional maintenance work prescribed by the manufacturer, the seller shall bear the costs thereof, including the costs of the materials and lubricants required.
c) For the parts installed during the repair, a warranty is provided until the end of the warranty period for the object of purchase on the basis of the purchase contract.
d) If the object of purchase becomes inoperable due to a defect covered by warranty, the buyer shall immediately contact the seller, who shall then determine whether the seller himself has the defect remedied by one of his technicians or whether the seller shall refer the buyer to a company recognised by the seller for servicing the object of purchase.
e) The seller is entitled to exchanged spare parts. At the seller’s request and expense, they shall be sent to the seller or stored until they are released for recycling.
8.3 If the defect cannot be remedied, or if the seller wrongly refuses to remedy the defect or if further attempts at repair are unacceptable to the buyer, the buyer may demand a reduction in payment instead of repair or withdraw from the contract. A claim for replacement delivery does not exist.
8.4 Warranty obligations are not affected by a change of ownership of the object of purchase.
8.5 Warranty obligations do not exist if the error that occurred is causally connected with the fact that
a) the buyer has not reported a defect in accordance with Section 8.2 letter a) and has immediately given the seller the opportunity to remedy the defect;
b) the object of purchase has been improperly handled or overstressed or
the object of purchase has previously been repaired, serviced or maintained in an operation c) not recognised by the seller for servicing and the buyer had to recognise this or
c) parts have been incorporated into the object of purchase whose use has not been approved by the seller, or the object of purchase has been altered in a manner not approved by the seller, or
d) the buyer has not followed the seller’s or manufacturer’s instructions regarding the handling, maintenance and care of the object of purchase (e.g. operating instructions).
8.6 Liability for normal wear and tear is excluded.
8.7 All claims for defects shall become statute-barred upon expiry of the warranty period in accordance with Section 8.1. For defects asserted but not eliminated within the warranty period, warranty shall be given until the defect has been eliminated; the limitation period for this defect shall be suspended for this period. In such cases, however, it shall end 3 months after the seller has declared that the defect has been rectified or that there is no defect.
9.1 Claims for damages are excluded regardless of the type of breach of duty, including unlawful acts, unless intentional or grossly negligent action or the conditions specified in the following paragraph 2 are present.
9.2 In the event of a breach of material contractual obligations (obligations the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely), the seller shall be liable for any negligence, but only up to the amount of the foreseeable damage.
9.3 The limitations of liability and exclusions in paragraphs 1 and 2 shall not apply to claims which have arisen due to fraudulent conduct on the part of the seller as well as in the case of liability for guaranteed characteristics, for claims under the Product Liability Act as well as damages arising from injury to life, limb or health.
9.4 Insofar as the seller’s liability is excluded or limited, this shall also apply to the seller’s employees, workers, representatives and vicarious agents.
9.5 The COBUS airport bus is subject to constant technical changes and adaptations in accordance with the legal and technical requirements of the European Union. It is the buyer’s responsibility to check before conclusion of the contract whether national regulations are applicable at the place of operation of the COBUS airport bus planned by it which go beyond the legal and/or technical requirements of the European Union and to inform the seller immediately of any need for adjustment. The seller will then examine whether such an adjustment is actually possible and economically feasible. Any technical or legal adjustment shall be reflected in a reasonable adjustment of the purchase price. The seller assumes no liability or responsibility for the operation of the COBUS airport buses and compliance with national regulations that go beyond the requirements of the European Union and are not part of the contract concluded with the buyer.
10 General provisions
10.1 Place of performance is the registered office of the seller.
10.2 These terms and conditions and the entire legal relationship between the seller and the buyer shall be governed by the laws of the Federal Republic of Germany and our “Code of Ethics” in the version valid at the time of conclusion of the contract published at www.cobus-industries.de. Uniform law, including but not limited to the provisions of the UN Convention on Contracts for the International Sale of Goods, shall not apply.
10.3 If the buyer is a merchant, a legal entity under public law or a special fund under public law, Wiesbaden shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, the seller is also entitled to sue at the buyer’s place of business.