General Terms and Conditions of Business for the Sale of brand-new Motor Vehicles
The following terms and conditions of business apply for the supply and sale of brand-new commercial vehicles by the seller (COBUS INDUSTRIES GmbH) to the buyer, if the buyer is an industrialist for whom the purchase is part of his company’s business, or he is a legal person under public law or a special fund under public law.
I. Validity of the terms and conditions / written form
1. The seller’s deliveries, services and supplies are carried out exclusively on the basis of these general terms and conditions of business. Consequently, they are also valid for all future business relations, even if they are not expressly confirmed again, in so far as the terms and conditions have not been amended in the meantime. The terms and conditions are regarded as accepted at the latest with the acceptance of the object of sale or service. Counter-confirmations of the buyer with reference to his terms and conditions of business or purchase are herewith contradicted.
2. All agreements made between the buyer and the seller for the purpose of performance of this contract must be set down in writing.
II. Quotation and conclusion of contract / transfer of rights and obligations of the buyer
1. The quotations of the seller are subject to confirmation and not binding. Declarations of acceptance and all the buyer’s orders require the seller’s written or telex confirmation to be legally effective or delivery of the object of sale.
2. However, the seller is obliged to notify in writing or by telex any rejection of the order after clarification of the availability.
3. The seller’s sales staff or commercial representatives are not authorised to make verbal supplementary agreements or to give verbal assurances which exceed the contents of this contract.
4. The transfer of rights and obligations of the buyer from this contract require the written authorisation of the seller.
1. In so far as not specified otherwise, the seller is bound by the prices contained in its quotation for 30 days from the date of the quotation. Otherwise, the prices specified in the seller’s order confirmation are decisive, plus the respective statutory turnover tax. Additional deliveries and services (e.g. delivery costs) will be calculated separately if no different agreement was made.
IV. Payment / default in payment
1. The purchase price and prices for performance of additional services are due payment in cash when the object of sale is delivered, however, at the latest 8 days after receipt of the notice of availability and handing over or sending of the invoice.
2. If payment by instalments are agreed, the whole of the remaining debt shall be due payment immediately, without taking account of possible changes made to the due date, if the buyer should default with 2 successive instalments wholly or partly or he ceases to make his payments or an application is filed against his assets for institution of composition proceedings or insolvency proceedings.
3. Payment orders, cheques, bills of exchange and assignments of claims are only accepted after special agreement and only on account of payment taking account of all collection and discount expenses.
4. The buyer can only offset against the seller’s claims if the buyer’s counterclaim is undisputed or there is a final and absolute title; he can only assert a right of retention in so far as it is based on claims from the contract of sale.
5. If the buyer defaults with the payment or with 2 successive instalments in the instance of agreement of payment by instalments, the seller can withdraw from the contract after setting an appropriate period of grace and demand compensation because of non-performance.
V. Delivery / default in delivery
1. The delivery dates or delivery periods which can be agreed on a binding or non-binding basis, must be specified in writing. Delivery periods start when the contract is concluded. If subsequent amendments are agreed, if necessary, a delivery date or delivery period must be agreed again at the same time.
2. The buyer can request the seller to deliver in an appropriate period in writing 6 weeks after a non-binding delivery date or non-binding delivery period has been exceeded. With this reminder the seller defaults in delivery. In addition to the delivery, the buyer can only demand compensation for the damage caused by delay if the seller is responsible due to intention or gross negligence. In the instance of default the buyer can also set the seller an appropriate period of grace in writing, with the information that he will refuse to accept the object of sale after the period has expired. After unsuccessful expiry of the period of grace, the buyer is entitled to withdraw from the contract of sale by means of a written declaration and in the instance of intention or gross negligence to demand compensation because of failure to perform. In this case the claim for delivery is prohibited.
3. If a binding delivery date or delivery period is exceeded, the seller defaults in delivery when the delivery date or delivery period is exceeded. The rights of the buyer are then determined in accordance with Point 2 Subsection 1 Sentence 3 and Subsection 2.
4. In the instance of delays in delivery and provision of services which are not only temporary due to force majeure and because of events which do not only render it considerably difficult for the seller to make the delivery or make it impossible, – in particular, this includes strikes, lockout, official instructions etc., also if they occur at the seller’s suppliers or their suppliers – the seller will not be responsible for binding, agreed deadlines and dates. They entitle the seller to postpone the delivery or the provision of service for the duration of the hindrance plus an appropriate start-up time, or to withdraw from the contract wholly or partly because of the part which is not fulfilled. If the hindrance lasts longer than 6 weeks, after the setting of an appropriate period of grace the buyer is entitled to withdraw from the contract with respect to the part of the contract which has not been fulfilled. If the period of delivery is extended or the seller is released from his obligation, the buyer cannot derive any claims for compensation as a result. The seller can only invoke the specified circumstances if he informs the buyer immediately.
5. Modifications in construction or shape, variations in shade as well as amendments to the volume of delivery on the part of the seller remain reserved during the period of delivery, in so far as the object of sale is not subject to substantial modification and the modification is reasonable for the buyer.
6. The details of the valid specifications of delivery volume, appearance, performances, measurements and weights, fuel consumption, running costs, etc. of the object of sale are part of the terms of the contract when the contract is concluded; they must be regarded as approximate and not as warranted characteristics; they serve as a benchmark to determine whether the object of sale is free of defects in accordance with Section VIII Point 1, unless there is an express warranty in accordance with Section I Point 2. In so far as the seller requires symbols or numbers to specify the order or the ordered object of sale no rights can be derived from these alone.
1. The buyer has the right to inspect the object of sale at the agreed place of inspection within 8 days after receipt of the notice of availability and the obligation to accept the object of sale within this period.
2. A possible test drive before acceptance must be kept within the limits of usual test drives of up to a maximum 20 km.
3. If the object of sale supplied reveals defects, which are not totally remedied within an appropriate period after notification of the defect in accordance with Point 1, the buyer can refuse acceptance.
4. If the buyer delays acceptance of the object of sale longer than 14 days from receipt of the notice of availability intentionally or as a result of gross negligence, the seller is entitled to withdraw from the contract and demand compensation due to non-fulfilment after setting a period of grace of 14 days. It is not necessary to set a period of grace if the buyer refuses to accept the object of sale seriously and finally or is obviously not in a position to pay the purchase price within this period. In these instances availability is not required.
5. If the seller demands compensation, lost profit is also included.
6. If the seller does not make use of the rights in accordance with Points 4 and 5 it can dispose freely of the object of sale and supply a similar object of purchase in its place at the terms of the contract within an appropriate period.
7. If the object of sale is driven by the buyer or his authorised representative for a test drive before its acceptance, the buyer is liable for damage incurred by the vehicle if the damage is caused intentionally or because of gross negligence on the part of the driver of the vehicle.
VII. Retention of title
1. The object of sale remains the property of the seller until settlement of the claims it is entitled to on the basis of the contract of sale. The retention of title also remains in force for all claims which the seller effects subsequently against the buyer in connection with the object of sale, e. g. as a result of repairs or deliveries of replacement parts or other services. The retention of title also applies for the claims which the seller has with respect to the buyer from its ongoing business relations.
2. During the duration of the retention of title, the buyer is entitled to ownership and use of the object of sale in so far as he complies with his obligations from the retention of title in accordance with the following provisions of this section and is not in arrears with payment. In the instance of conduct in infringement of the contract on the part of the buyer, in particular, default in payment, the seller is entitled to withdraw from the contract and to demand the return of the contractual object of sale as well as assert claims for damages.
3. As long as the retention of title remains in force, sale, pledge, transfer by way of security, rental or other permission of use of the object of sale detrimental to the seller’s security and modification of the object of sale are only permissible with the prior written authorisation of the seller. The seller is entitled to ownership of the vehicle documents during the duration of the retention of title. The buyer is obliged to making a written application to the licensing office so that he can be issued with the vehicle documents.
4. In the instance of third-party intervention, in particular, pledging of the object of sale or in the instance of exercise of the industrialist’s right of lien of a workshop, the buyer must notify the seller immediately in writing and point out the seller’s retention of title to the third party immediately. The buyer is liable for all the costs incurred by the cancellation of the intervention and the restitution of the object of sale, in so far as they cannot be recovered from third parties.
5. The buyer must conclude comprehensive insurance with an appropriate excess for the duration of the retention of title with the stipulation that the seller is entitled to the rights from the insurance contract. If the buyer does not comply with this obligation, the seller can conclude the comprehensive insurance at the expense of the buyer, disburse the premium amounts and collect them as part of the claim from the contract of sale. The payment from the comprehensive insurance must be used at the full amount for complete repair of the object of sale, in so far as not agreed otherwise. If in the instance of severe damage, with the authorisation of the seller, the decision is taken not to repair the vehicle, the insurance payment is used to redeem the purchase price and the costs for the seller’s supplementary services.
6. During the term of the retention of title the buyer is obliged to keep the object of sale in a proper condition and to have all the services specified by the manufacturer and necessary repair work carried out immediately – apart from instances of emergency – by the seller or by a workshop authorised by the seller for the servicing of the object of sale.
1. From transfer of the risk the seller guarantees faultlessness in line with the respective state-of-the-art technology of the object of sale type in accordance with the provisions of this section,
a) for vehicles of the type Cobus 2400 for 12 months,
b) for all other models of the Cobus type for 24 months,
c) for vehicles of the type Optimo for 36 months or 100,000 km (whatever comes first) under consideration of the Optimo service- and warranty booklet.c
2. The buyer is entitled to have defects repaired and damage caused by the defects to other parts of the object of sale (rectification of defects).
The following applies with respect to the processing:
a) The buyer can assert the claims for the servicing of the object of sale at the seller’s or at businesses authorised by the seller to service the object of sale. The buyer must notify defects in writing or have them recorded immediately after they have been identified to the firm carrying out the repair.
b) Rectification of defects must be carried out immediately in accordance with the technical requirements by the replacement or repair of defective parts with calculation of the wages, material and freight costs required for this. Replaced parts become the property of the seller. If additional manufacturer-stipulated servicing work becomes necessary as a result of the rectification of defects, the seller is liable for the costs including the costs of the materials and required lubricants.
c) Parts installed during the rectification of defects are guaranteed on the basis of the contract of sale until expiry of the guarantee period for the object of sale.
d) If the object of sale cannot be used because of a defect which is covered by the warranty obligations, the buyer must contact the firm which is on duty, is authorised by the seller to service the object of sale and which is located nearest to the object of sale which is out of operation. This firm decides whether the necessary work should be carried out on the spot on in its workshop.
e) The seller is entitled to exchange replacement parts. They must be forwarded to it at its request and at its expense or they must be stored until they are released for utilisation.
3. If the defects cannot be repaired, the seller refuses the repair in error or further attempts at rectification of defects are not reasonable for the buyer, in place of rectifi¬cation the buyer can demand a reduction of the payment or withdraw from the contract. There is no right to a replacement delivery.
4. Warranty obligations are not affected by change of ownership for the object of purchase.
5. Warranty obligations do not apply if the defect which occurs has a causal link with the fact that
– the buyer has not notified a defect in accordance with Point 2 a) and provided immediate opportunity for the rectification to be carried out;
– the object of sale has been treated improperly or subject to undue wear and tear or
– the object of sale has previously been repaired, serviced or looked after by a firm not authorised by the seller for the provision of care and the buyer must acknowledge this or
– parts have been installed in the object of sale which have not been authorised for use by the seller, or the object of sale has been modified in a way which was not authorised by the seller, or
– the buyer has not complied with the regulations of the seller, or the manufacturer for the handling, service and maintenance of the object of sale (e.g. operating instructions).
6. Liability for normal wear and tear is prohibited.
7. All claims due to defects expire when the warranty period expires in accordance with Point 1. Until the defect is repaired a warranty is provided for defects asserted during the warranty period but not repaired; the limitation period is suspended for this defect until the repair is completed. However, it comes to an end in these instances 3 months after the seller declares that the defect has been repaired or that there is no defect.
1. Claims for compensation are prohibited irrespective of the type of infringement of obligation, including illicit actions, in so far there is no intentional or grossly negligent action.
2. The seller is liable for each instance of negligence in the instance of infringement of important contractual obligations, however, only up to the amount of the foreseeable damage. Claims for lost profit, reduction in value of the object of sale, loss of use, saved expenses, from third-party claims for compensation, the costs of car rental, towing costs, car contents, load and other indirect and consequential damage cannot be asserted unless a quality characteristic guaranteed by the seller is intended to cover the buyer against this kind of claim.
3. The liability limitations and exclusions in subsections 1 and 2 do not apply to claims which have arisen as the result of malicious conduct of the seller, in the instance of liability for guaranteed quality characteristics, for claims in accordance with the Product Liability Act, and claims from injury to life, body or health.
4. In so far as the seller’s liability is prohibited or limited, this also applies for employees, workers, representatives and the seller’s vicarious agents.
X. Place of performance / applicable law / place of jurisdiction / part invalidity
1. The seller’s registered office shall be the place of performance.
2. The law of the Federal Republic of Germany shall apply for these terms and conditions of business and the entire legal relations between the seller and the buyer. The provisions of the UN Convention on Contracts for the International Sale of goods shall not apply.
3. In so far as the buyer is a business man, a legal person under public law or special assets under public law, Wiesbaden shall be the place of exclusive jurisdiction for all disputes which arise indirectly or directly from the contractual relationship.
4. If one provision in these terms and conditions of business or a provision within the frame of other agreement is or becomes invalid, the validity of all provisions or agreements shall not be affected as a result.
Wiesbaden, October 2006