GENERAL TERMS AND CONDITIONS OF PAUL NUTZFAHRZEUGE GMBH
I. Scope – Definitions
- These Terms and Conditions (T&Cs) apply to deliveries and services rendered by the company Paul Nutzfahrzeuge GmbH, Josef-Paul-Strasse 1, 94474 Vilshofen an der Donau (hereinafter referred to as ‘we’ or ‘Paul Nutzfahrzeuge’) and to customers, who may be businesses or consumers (hereinafter jointly referred to as ‘Customers’).
- These T&Cs apply in particular to contracts for the sale and/or the delivery of movables (hereinafter also referred to as: ‘goods’), regardless of whether we produce the goods ourselves or purchase them from suppliers.
- A consumer is any natural person who enters into a legal transaction for purposes which cannot predominantly be characterised as business or self-employed professional activities.
- A business is any natural or legal person or partnership having legal capacity which when entering the contract acts in pursuit of its business or self-employed professional activities.
- Our T&Cs shall apply exclusively. Any terms and conditions of the Customer different from, in conflict with, or additional to these T&Cs shall become part of the contract only if and to the extent that we have agreed to their applicability. This agreement shall be required in all cases, including the situation where we carry out a delivery to the Customer without reservation, although we have knowledge of the T&Cs of the Customer.
- These T&Cs, as amended from time to time, shall also apply to businesses as a framework agreement for any future similar contracts for the sale and/or delivery of movables to the same Customer, without our having to refer to them in every case.
- Any additions, variations or other ancillary agreements must be made in writing. Any individual agreements made with the Customer in individual cases shall in any case take precedence over these T&Cs.
- Any references to the applicability of statutory provisions are made for clarification only. Even in the absence of such clarification, statutory provisions shall have effect unless directly varied in or expressly excluded from these T&Cs.
II. Offer and conclusion of contract
- Our offers shall be non-binding. This shall also apply if we have made available to the Customer catalogues, technical documentation or any other product descriptions or documents.
- An order shall be deemed a binding offer of a contract. We shall be entitled to accept this offer of a contract within six weeks of its receipt by us.
- A contract shall only be concluded by our written order confirmation or by delivery of the goods.
- Any particulars of dimensions and weight, performance, illustrations and drawings and any particulars in catalogues, brochures, circulars, advertisements are approximations only, unless expressly marked as binding.
III. Prices and terms of payment
- Our prices for businesses are net prices ex works. Value-added tax at the statutory rate as of the date of the invoice shall be stated separately.
- For businesses, pricing shall be in accordance with the prices confirmed by us and/or valid on the date of delivery. Prices are computed on the basis of raw materials and wage costs at the time of making an offer. In the event of unforeseen significant increases in raw materials prices or wage increases we shall, in the case of blanket orders, multiple delivery contracts and contracts having a term of more than three months, be entitled to request an appropriate price adjustment from the Customer or to withdraw from the contract without charge if it remains unfulfilled.
- For consumers, we shall quote final prices ex works including statutory value-added tax.
- Our prices shall apply ex our place of business.
- Customs duties, taxes, MOT fees, packaging, shipping costs and insurance must be paid for separately by the Customer.
- Payments shall be due immediately upon notification of completion and/or readiness for collection and sending of the invoice and must be made to Paul Nutzfahrzeuge without deductions, unless otherwise agreed.
- In the case of partial deliveries, Paul Nutzfahrzeuge shall be entitled to issue partial invoices in respect of the share of the goods delivered. In this case, any additional shipping costs shall be borne by us.
- For businesses, the following provisions shall also apply:
a. In the case of delays in payment or risk to our claims arising from a deterioration of the Customer’s creditworthiness, we shall be entitled to demand collateral and/or only to carry out any deliveries still outstanding against payment in advance or the provision of collateral.
b. The Customer shall have the right to offset or the right of retention only to the extent that his claim has been established in a legally binding manner or is uncontested.
IV. Customs, import duties and registration in case of export
- For deliveries outside the European Union, import duties, taxes and other charges may also apply, which are collected as soon as the goods reach their destination. These additional charges for customs clearance shall be borne by the Customer. Paul Nutzfahrzeuge has no influence over this.
- As the importer, the Customer is required to comply with all laws and ordinances of the country in which the Customer receives the goods. The Customer shall have sole responsibility for registration and homologation in the country of destination.
V. Scope of services
- The scope of services shall be determined by our written order confirmation.
- All deliveries and services shall be carried out according to the current state of the art. The choice of components, parts and materials shall be incumbent on Paul Nutzfahrzeuge, unless agreed otherwise in writing.
- We reserve the right to make changes of shape and improvements regarding construction, use of materials, and finish in the light of technological progress or changed legal requirements throughout the delivery period if the changed specifications meet at least the same state of the art, the delivered item is not altered adversely, and the change or variation is reasonable for the Customer considering the legitimate interests of Paul Nutzfahrzeuge.
- The Customer authorises us to enter into sub-contracts and to carry out test and transport drives.
VI. Delivery date – Delay in acceptance
- A delivery/completion date can only be determined once all design particulars required for the order have been unambiguously established. Should the scope of the order change or be extended with respect to the original order, we must state a new completion date to the Customer, giving reasons.
- Observance of these dates shall be conditional on the timely and orderly fulfilment of the Customer’s obligations. We reserve the defence alleging non-performance of the contract.
- The delivery periods and dates stated by us are not fixed-date transactions within the meaning of Section 286(2) no. 4 of the BGB [German Civil Code], Section 376 of the HGB [German Commercial Code], unless otherwise expressly agreed in writing.
- An agreed delivery date shall be deemed observed, in the case of businesses, if by that date the item for delivery has left the works or notification has been given of its readiness for shipping.
a. If we have stated delivery dates and if an order has been placed on the basis of these dates, these dates shall be extended if we are prevented from fulfilling this obligation by the occurrence of unforeseen events which we have been unable to avert even by exercising such care as is reasonable under the circumstances (e.g., war, force majeure, and industrial action, in particular strikes and lock-outs), for the duration of such prevention. This shall also apply if such circumstances affect our suppliers.
b. If we cannot observe binding delivery dates for reasons for which we are not responsible (unavailability of goods or services), we shall inform the Customer of this without delay and at the same time state the expected new delivery date. If the goods or services remain unavailable by the new delivery date, we shall be entitled to withdraw from the contract in whole or in part. In this case, any consideration on the part of the Customer already made shall be returned by us without delay. A case of unavailability of goods or services shall be deemed to exist, in particular, if our supplier fails to deliver to us in time, where we have entered into a congruent covering transactions. Our statutory rights to withdraw from or terminate the contract and the statutory provisions regarding termination of the contract if a party is no longer obliged to perform its contractual obligations shall remain unaffected.
c. If a delivery is delayed for reasons for which we are responsible, the Customer may demand fixed-rate compensation in respect of the damage caused by the delay. The fixed-rate compensation for damage shall amount to 0.5% of the delivery value for each complete month of delay, but in any case not exceed 5% of the delivery value of the goods delivered with delay. We reserve the right to prove that the Customer has not suffered any damage or damage significantly less than the foregoing compensation.
d. If shipping is delayed at the Customer’s request, he shall be invoiced for the storage costs incurred beginning one week after notification of readiness to ship, in case of storage on our premises at least 0.5% of the invoice amount for each month. We shall be entitled, after setting a reasonable deadline and on fruitless expiry of such deadline, to dispose otherwise of the delivery item and to make a delivery to the customer within a reasonable period of time.
VII. Completion, acceptance, transfer of risk in case of businesses
- We shall be deemed to have fulfilled our delivery or service obligation by notifying the Customer of the completion or readiness of the goods at our place of business.
- Acceptance of the goods by the Customer shall take place at our premises, unless otherwise agreed.
- The Customer shall be obliged to collect the goods within 1 week of receipt of the notification of completion. In case of a delay in acceptance, we may charge a storage fee in accordance with local custom. At our discretion, the goods may also be stored otherwise. The cost and risk of storage shall be borne entirely by the Customer.
- For businesses, the following provisions shall also apply:
a. Delivery shall be made ex works, which shall also be the place of fulfilment.
b. The risk of accidental loss or accidental deterioration of the goods shall be transferred to the Customer no later than at the time of the transfer of the goods. In the case of a sale by shipment, the risk of accidental loss or accidental deterioration of the goods and the risk of delays shall be transferred at the time of the delivery of the goods to the transport company, carrier or the person or entity otherwise entrusted with carrying out the shipment. Where an acceptance inspection has been agreed, this shall be relevant to the transfer of risk. The law of work contracts shall in other respects apply accordingly to any agreed acceptance inspection. The transfer and/or acceptance shall not be affected by any delay in acceptance on the part of the Customer.
c. If the Customer delays acceptance or fails to co-operate where required to do so or if a delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for any loss arising from this, including any additional expenses.
d. Insurance against breakage, damage in transit or fire damage shall only be taken out at the Customer’s request and expense.
VIII. Retention of title
- The object of purchase shall remain our property until payment has been made in full.
- For businesses, the following provisions shall also apply:
a. We shall retain the title to the object delivered until full settlement of all claims arising from the delivery contract. This shall also apply to any future deliveries, even if we do not make explicit reference to this in all cases. We shall be entitled to reclaim the object of purchase if the Customer acts in violation of the contract.
b. The Customer is obliged to handle the object of purchase with due care for as long as the title has not been transferred to him. In particular, he is obliged to insure the object of purchase sufficiently at replacement value against theft, fire and water damage at his own expense. If maintenance or inspection must be carried out, the Customer must carry these out at his own expense in a timely manner. For as long as the title has not been transferred, the Customer must inform us in writing without delay if the object delivered is subject to an attachment of property or other interventions by third parties. To the extent that the third party is unable to reimburse our judicial and extra-judicial costs connected to any legal action in accordance with Section 771 of the ZPO [German Code of Civil Procedure], the Customer shall be liable for any shortfall incurred by us.
c. The Customer is entitled to resell the reserved goods in the ordinary course of business. Any amounts receivable from the purchaser arising from the resale of the reserved goods are hereby assigned to us by the Customer in the amount of the final invoice total agreed with us (including value-added tax). This assignment shall have effect regardless of whether the object of purchase has been resold without or following processing. The Customer shall remain authorised to collect the amount receivable even after this assignment. Our authority to collect the amount receivable ourselves shall remain unaffected by this. However, we shall not collect the amount receivable for as long as the Customer complies with his payment obligations arising from the income collected, is not in default of payment and, in particular, no application has been made for opening insolvency proceedings and no stoppage of payments is in effect.
d. For as long as the retention of title has effect, the Customer must not, without our written agreement, alter, rework, pledge, or collateralise the delivered item nor grant any third party a contractual right to use it. In the event of a violation of these terms, the Customer's inchoate title to the object of purchase shall continue in respect of the reworked item. Where the object of purchase is processed with other objects not belonging to us, we shall acquire joint title to the new object pro rata to the objective value of our object of purchase in relation to the other objects processed at the time of processing. The same shall apply in the case of mixing. Where mixing is effected in such a way that the object of the Customer must be considered the main object, it shall be deemed agreed that the Customer transfers pro-rata joint ownership to us and shall keep the sole or joint property thus created safe for us.
e. We undertake to release the securities to which we are entitled at the request of the Customer if their value exceeds the amounts receivable to be secured by more than 20%.
f. In case of attachment or seizure of the delivered item or other disposal by third parties, the Customer must notify us in writing without delay and bear the costs of any measures to remedy the intervention, in particular of any action of third-party opposition, if such costs cannot be collected from the opposing party. Moreover, the Customer is required, in case of attachment or seizure, to inform the pledgee of our property rights.
- In the case of Customers who are consumers, statutory warranties shall apply.
- For businesses, the following provisions shall apply in addition:
a. As regards the rights of the Customer in the case of material defects or defects of title, the statutory provisions shall apply, unless otherwise provided by what follows. The special statutory provisions in case of final delivery to a consumer (recourse of the supplier according to Sections 478, 479 of the BGB) shall remain unaffected in all cases.
b. The warranty period shall be 1 year for new items. No warranty shall apply to used items.
c. In case of a defect, we shall be entitled, at our discretion, either to repair the object of purchase or to effect a new delivery.
d. In the event of a failure of retrospective fulfilment, the Customer shall be entitled to demand a reduction or, at his discretion, withdraw from the contract. A retrospective fulfilment shall be deemed to have failed after the second unsuccessful attempt at retrospective fulfilment.
e. Replaced parts shall become our property.
f. The assertion of warranty claims for defects in our deliveries is conditional on the Customer’s having duly complied with his commercial obligation to inspect goods and to make a complaint in respect of defects, to the extent that this is expedient in the ordinary course of business. The commercial obligation to inspect goods and to make a complaint in respect of defects is subject to the statutory provisions (Sections 377, 381 of the HGB), with the following proviso: The Customer’s obligation to inspect goods is limited to defects which are clearly apparent from external inspection including that of the delivery documents during the control of goods or quality control (e.g., transport damage, incorrect or incomplete delivery). Where an acceptance inspection has been agreed, the obligation to inspect goods shall not apply. In other respects, it is of importance to what extent an inspection is expedient in the ordinary course of business giving consideration to the specific circumstances. The obligation to make a complaint in respect of defects discovered subsequently shall be unaffected. Without prejudice to the obligation to inspect goods, a complaint in respect of defects (notification of defects) shall in any case be deemed immediate and timely if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.
g. No warranty shall apply to any damage caused by ordinary wear and tear. Furthermore, no warranty shall apply to any damage caused by improper handling, such as unsuitable use, disregard of operating and maintenance instructions, incorrect installation and/or commissioning, incorrect repair, excessive use, use of unsuitable operating or working materials, where such damage is not due to any fault of ours.
h. Where we have installed superstructures or systems on vehicles, our warranty obligation shall apply only to the superstructures and systems in accordance with the appropriate installation instructions of the manufacturer. The warranty for defects of the vehicle which has been fitted by us with superstructures and systems shall be that of the manufacturer, unless the vehicle has also been delivered by us in brand-new condition or the defect is due to superstructures and systems fitted by us.
i. If the Customer determines the construction or prescribes its material in spite of our objections of which he has been duly notified, our warranty shall not extend to any defects arising from this.
j. In the event of a remedy of defects, we shall be obliged to bear all expenses incurred for the purpose of this remedy, in particular transport, travel, labour and material costs, to the extent that these are not increased by the delivered item’s having been transported to another location outside the Customer’s country. The aforementioned costs shall be borne by us only up to the reasonable limit of such costs as would have been incurred for a repair in the Customer’s country; any costs exceeding this shall be borne by the Customer.
k. The foregoing limitations and reductions of time limits shall not apply in the event of damage arising from loss of life, bodily injury or injury to health or in case of other damage due to an intentional or grossly negligent dereliction of duty or malice on the part of Paul Nutzfahrzeuge, or in case of damage covered by warranty under mandatory statutory provisions such as the Produkthaftungsgesetz [German Product Liability Act] or in the case of an assumption of guarantees or recourse claims under Sections 478, 479 of the BGB.
X. Liability, exclusion of liability
- For claims for damages caused by us, our legal representatives or vicarious agents, we shall always be liable without limitation in case of loss of life, bodily injury or injury to health, in case of intentional or grossly negligent dereliction of duty, in case of a promise of guarantee, to the extent agreed or to the extent covered by the scope of the Produkthaftungsgesetz.
- In case of the violation of material contractual obligations whose fulfilment is essential for the due performance of the contract in the first place and in compliance with which the contracting party may ordinarily trust (‘cardinal duties’) through slight negligence on our part or on the part of our legal representatives or vicarious agents, the extent of liability shall be limited to the damage foreseeable at the time of concluding the contract and the occurrence of which must typically be expected.
- Any other claims for damages shall be excluded.
XI. Confidentiality, data protection
- The contracting parties undertake to treat as secret all commercial and technical information of which they become aware in the course of the business relationship that is not publicly known as a business secret regardless of its specific form. In particular, drawings, sketches, technical details, business transactions, procedures and working methods, illustrations, plans, calculations, models, product descriptions and any other particulars and documents made available to the parties for the purposes of the contract or of which they have otherwise become aware must be kept strictly confidential and treated as secret vis-à-vis third parties and must not be made available to third parties or used for these without the prior written agreement of the respective other party, unless a disclosure is required for the due performance of the contract or on the grounds of legally binding decisions or administrative orders. Where information must be passed on to third parties, such disclosure must be limited to the extent required for the due performance of the contract or by the legally binding decision or administrative order. For their part, third parties must be obliged to keep the information received confidential. The confidentiality requirement shall cease to apply when and to the extent that the knowledge contained in the information has become publicly known. The aforementioned obligations shall continue to have effect after the termination of the contractual relationship.
- The contracting parties shall process the data required for the conduct of the business having regard to the data-protection provisions of the GDPR. We process personal data of the persons acting for the Customer in connection with the performance of the contract and with appropriate steps prior to entering into a contract. This includes details of the data subject (name, address, email address, telephone number). The legal basis is point (b) of the first subparagraph of Art. 6(1) of the GDPR. In this respect, the controller of the data processing is Paul Nutzfahrzeuge GmbH.
XII. Copyright in documents, drawings, plans, etc.
- Paul Nutzfahrzeuge reserves the title and all intellectual property rights to all calculations, drawings, plans and other technical documents, as well as substances and materials (e.g., software, finished and semi-finished products), tools, templates, samples made available to the Customer prior to and after conclusion of the contract.
- Such documents must only be used for the purposes of the contract and must be returned to us on completion of the contract.
- Without written consent, the Customer must not use, copy, or reproduce these documents or make them available or known to third parties. The documents must be kept secret from third parties, including after termination of the contract. The confidentiality requirement shall only cease to apply when and to the extent that the knowledge contained in the documents made available has become publicly known.
- Where we make use of signs or numbers to designate the order or the item ordered, no rights can be derived from this alone.
XIII. Reference to ODR platform – consumer dispute resolution
- The European Commission has made available a platform for Online Dispute Resolution (ODR), which can be found at http://ec.europa.eu/consumers/odr/. Our email-address for consumer complaints is email@example.com
- We are not required and not prepared to take part in a dispute resolution procedure before a consumer arbitration body.
XIV. Choice of law – Place of jurisdiction in case of businesses – Language of contract
- Applicable law shall be the law of the Federal Republic of Germany, excluding UN law on the international sale of goods. In the case of consumers, this choice of law shall apply only to the extent that it does not remove the protection granted by mandatory provisions of the law of the state in which the consumer has his permanent residence.
- Contracts are stored electronically by us; however, for reasons of data protection they will no longer be accessible to the Customer after conclusion of the contract.
- Where the customer is a merchant, legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for any disputes arising from contractual relations between the Customer and ourselves shall be the place of the registered office of Paul Nutzfahrzeuge. In addition, we shall also be entitled to bring a legal action against the Customer at his place of jurisdiction.
- The language of the contract shall be German.
As of 26.04.2019