GENERAL TERMS AND CONDITIONS OF PAUL NUTZFAHRZEUGE GMBH
I. Scope of application – definitions
1. These General Terms and Conditions apply to all deliverables and services of Paul Nutzfahrzeuge GmbH, Josef-Paul-Straße 1, 94474 Vilshofen an der Donau (hereinafter referred to as “we” or “Paul Nutzfahrzeuge”) and customers, which may be traders or consumers (hereinafter referred to as Buyer or Customer on the whole).
2. The scope of application of these General Terms and Conditions includes but is not limited to contracts on the sale and/or the supply of movable goods (hereinafter also: “Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers.
3. A consumer is any natural person entering into a legal transaction for a purpose which may predominantly not be associated with their commercial or independent professional activities.
4. A trader is any natural or legal person or partnership with legal capacity performing its commercial or independent professional activities by entering into the contract.
5. Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract insofar as and to the extent that we have expressly agreed to their validity. This requirement of our approval shall apply in any case, for example also if we perform the delivery to the Buyer unconditionally despite us being aware of their general terms and conditions.
6. For traders, the General Terms and Conditions as last updated shall apply as a framework agreement also for future, similar contracts on the sale and/or the delivery of movable goods to the same trader without us being required to refer to them again in each individual case.
7. Amendments, deviating terms and other supplementary agreements must be set down in text form. Individual arrangements with the Buyer made in individual cases shall take precedence over these General Terms and Conditions in any case.
8. References to the application of legal provisions are only made for clarity’s sake. Therefore, the legal provisions shall apply even without such explicit reference for clarity, if they are not amended directly in these General Terms and Conditions or are expressly excluded.
II. Offer and conclusion of contracts
1. Our offers are non-binding. This also applies if we have provided the Buyer with catalogues, technical documentation or other product descriptions or records. All offers are based on the characteristics of the German market. They are subject to errors, changes and prior sales. All offers are valid only while supplies last.
2. Submitting an order is deemed a binding offer to conclude a contract. We have the right to accept this offer to conclude a contract within six weeks by sending an order confirmation or by fulfilling the contract.
3. Information on dimensions and weight, performances, illustrations and drawings and information in catalogues, brochures, newsletters and advertisements shall only be approximate if it is not expressly marked to be binding.
III. Prices and payment conditions – price adjustment
1. Unless provided otherwise in the order confirmation, our prices apply without any discount, including but not limited to a cash discount, in Euro “ex works” plus packaging, freight and insurance, which will be invoiced separately.
2. For consumers, the prices are understood to be the total price ex works including the statutory value-added tax.
3. For traders, our prices are understood to be net prices ex works. The value-added tax is stated separately at the statutory rate on the day of issue of the invoice.
4. The Customer shall pay customs, duties, packaging, shipping costs and insurance separately.
5. Price changes are only admissible if the delivery is to be made more than 4 weeks after conclusion of the contract. Our prices are calculated on the basis of the standard raw material and labour costs at the time of making the offer and/or the sales price of the manufacturer/importer. If a delivery is made later than 4 months after the conclusion of the contract and if there are changes to the sales price of the manufacturer/importer, the material price and/or standard wages or changes to operational taxes or energy, e.g. electrical power or gas, or changes in the price of materials, e.g. for aluminium, steel, rubber, PVC, wood, both parties hereunder may request an adjustment of the agreed price in accordance with the increase or reduction in costs. In this case, the price adjusted by the amount of such change shall apply. At their request, we will provide the Customer with proof for the increase or reduction of the price.
6. If an increase of more than 5 % of the agreed price is asserted, the Customer may cancel the contract. Notice of the cancellation must be sent within 2 weeks as of the notice of the change in prices.
7. Payments are due immediately upon notice of completion or readiness for pick-up and consignment and shall be paid to Paul Nutzfahrzeuge without any discount unless agreed otherwise.
8. In the event of partial deliveries, Paul Nutzfahrzeuge is entitled to issue partial invoices for the share of the delivered Goods. In this event, we will bear the additional shipping costs.
9. For traders, we are entitled to demand securities in the event of default or threats to our claims due to a decline of creditworthiness of the Buyer or to perform pending deliveries only against advance payment or provision of securities.
IV: Customs, import fees and licensing in case of export.
1. Deliveries outside of the European Union may also incur additional import customs, taxes and other fees which are collected as soon as the Goods arrive at their destination. The Customer shall bear these additional fees for customs clearance. Paul Nutzfahrzeuge does not have any influence in this regard.
2. As the importer, the Customer is obliged to comply with all laws and regulations of the country in which the Buyer will receive the products. The Customer alone shall be responsible for the eligibility for licensing and homologation in the country of destination.
V. Scope of services
1. Our order confirmation in text form shall define the scope of services.
2. All deliverables and services are provided in line with the current state of the art. Unless agreed otherwise in text form, Paul Nutzfahrzeuge shall bear the responsibility for selecting the components, parts and materials.
3. During the delivery period, we reserve the right to make changes of the shapes and make improvements regarding the construction, materials used and execution in line with technological progress or changed legal requirements if the change meets at least the same state of the art, the deliverable is not changed to the Customer’s detriment and the change or deviation is acceptable for the Buyer in consideration of compelling interests of Paul Nutzfahrzeuge.
4. The Buyer authorises us to conclude subcontracts and to perform trial runs and transfer trips.
VI. Delivery period – delayed acceptance
1. The delivery times and periods indicated by us are not fixed deadlines pursuant to sec. 286 II no. 4 of the BGB [German Civil Code], sec. 376 of the HGB [German Commercial Code] unless agreed otherwise. Delivery dates not confirmed by us in text form within a scope of a fix-term transaction expressly referred to as such shall always be subject to change and be deemed approximate.
2. A delivery or completion deadline can only be determined after fully settling all details of the performance steps required for the order. If the scope of the order is changed or expanded compared to the original order, we must provide the Buyer with a new date of completion and the justification for it.
3. Meeting this deadlines requires that the Buyer will fulfil their obligations in due time and form. We reserve the right of objection due to an unfulfilled contract.
4. A delivery period agreed with Customers who are traders is deemed to be met if the deliverable has left the plant before its expiration or if the Customer has been notified of its readiness for shipping.
5. If we have indicated delivery periods which were used as the basis for the placement of the order, and if we are prevented from fulfilling this obligation by the occurrence of unforeseeable events which we could not prevent even exercising the care reasonable to expect under the circumstances of the event (Force Majeure, e.g.: war, force majeure and labour conflicts, including but not limited to strike and lock-outs, natural disasters, epidemics, pandemics, shortage of raw materials, world-wide interruptions of the supply chain, political unrest, acts of terrorism, governmental actions or regulatory measures), such periods shall be extended by the duration of the impediment. If pertinent unforeseeable events cause a delay in performance of more than four months, both parties may cancel the contract. This also applies if the circumstances occur at suppliers. Other rights of cancellation shall remain unaffected by this.
6. If we cannot meet binding delivery deadlines for reasons we may not be held responsible for (unavailability of performance), we will immediately notify the Customer of this and indicate to them the anticipated new delivery period at the same time. If performance is not possible even within the new delivery period, we are entitled to cancel the contract fully or in part. In this case, we will immediately return any consideration the Customer has already paid. Cases of impossibility of performance as defined hereunder include but are not limited to failure of delivery to us by our supplier in due time if we have entered a congruent hedging transaction. Our legal rights of cancellation and termination and the legal provisions on fulfilment of the contract in the event of exclusion of the obligation to perform shall remain unaffected.
7. If shipping is delayed at the Customer’s request, the costs incurred by storage starting a week after notice of readiness for shipping shall be charged to them, with at least 0.5% of the invoice amount per month if the Goods are stored in our warehouse. After fixing and unsuccessful expiration of a respite of 14 days, we shall be entitled to dispose of the delivery item otherwise and to supply the Customer within a reasonable period of time.
VII. Delivery, acceptance inspection, transfer of risks for traders
1. Unless provided otherwise in the order confirmation, delivery “ex works” is deemed agreed.
2. We fulfil our delivery or performance obligation by notifying the Customer of provision or completion of the Goods at our domicile.
3. Unless agreed otherwise, the Customer shall inspect the Goods at our plant.
4. The Customer is obligated to pick up and inspect the Goods for acceptance within 1 week as of receipt of the notice of completion. If the acceptance inspection is delayed, we will charge the storage fees customary at our location. At our discretion, the Goods may also be stored otherwise. The Customer shall bear all costs and risks relating to the storage.
5. In addition, the following applies for Customers who are traders:
a. Delivery is made ex works from the location which is also the place of performance.
b. The risk of accidental damage and theft of the Goods is transferred to the Customer at handover of the Goods the latest. In case of sale by delivery to a place other than the place of performance, the risk of accidental damage and theft of the Goods and the risk of delays is transferred to the Customer at delivery of the Goods to the carrier, forwarder or any other person or establishment commissioned with the delivery. If an acceptance inspection was agreed, it shall be determinative of the transfer of risks. The legal provisions of the laws for contracts for work and labour shall also apply accordingly for an agreed acceptance inspection otherwise. The Customer being in default of acceptance shall be deemed equivalent to handover or acceptance inspection having been performed.
c. If the customer is in default of acceptance, if they fail to co-operate or if our delivery is delayed for other reasons for which the Customer may be held responsible, we shall be entitled to demand compensation for any damage incurred including additional expenses.
d. We will only take out insurance against breakage, damage in transit and fire damage by order of the Customer and at their expense.
VIII. Reservation of title
1. We reserve title to the object of purchase until full payment.
2. While title is reserved, we are entitled to having the car documentation in our possession.
3. In addition, the following applies for Customers who are traders:
a. We reserve title to the delivered item until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not expressly invoke such right every time. We are entitled to take back the object of purchase if the Customer acts contrary to the contract.
b. While title has not yet transferred to them, the Customer is obligated to treat the object of purchase with care. This includes but is not limited to the obligation to take out sufficient insurance against theft, fire and water damage at the Goods’ replacement value at the Customer’s own expense. If maintenance and inspection work is required, the Customer must perform such work at their own expense in good time. As long as title has not been transferred, the Customer has to immediately notify us in text form if the delivered item is seized or is subjected to other interferences of third parties. If the third party is not able to reimburse us for the judicial and extra-judicial costs of a legal suit according to sec. 771 ZPO [German Code of Civil Procedure], the Customer shall be liable for the loss incurred by us.
c. The Customer is entitled to resell the Goods subject to reservation of title in the ordinary course of business. The Customer hereby assigns to us the receivables from their purchaser incurred by the resale of the Goods subject to reservation of title to the amount of the final invoice amount (including value-added tax) agreed with us. Such assignment is valid regardless of whether the purchased item was resold before or after further processing. The Customer retains the authority to collect the receivables even after assigning them to us. Our authorisation to collect the receivables ourselves remains unaffected by this. However, we will not collect the receivables for as long as the Customer fulfils their payment obligations with the collected profits, are not in default and have not submitted an application for the opening of insolvency procedures in particular nor have ceased payment.
d. While reservation of title is in effect, the Customer may not change nor rework the delivered item nor pledge, assign by way of security nor grant use of it to third parties by contract without our consent in text form. In case of non-compliance, the Customer’s expectant right to the purchased item extends to the remodelled item. If the purchased item is processed with other objects not belonging to us, we gain joint ownership to the new item proportionally to the objective value of our purchased item and the other processed items at the time of processing. The same applies in case of blending/mixing. If the Goods are blended/mixed in such a manner that the item of the Customer must be considered the main item, it is deemed agreed that the Customer grants us proportional co-ownership and holds the sole ownership or co-ownership for us in safe custody.
e. We undertake to release the securities to which we are entitled at the Customer’s request if their value exceeds the value of the receivables secured by them by more than 20%.
f. In the event of seizure and sequestration of the delivered item or other intervention by a third party, the Customer shall notify us immediately in text form and shall bear the expenses for measures to eliminate the interference, including but not limited to intervention procedures, unless they can be collected from the opposing party. In addition, the Customer is obligated to advise the pledgee of our title upon seizure or sequestration.
1. If the Customer is a consumer, the statutory warranty shall apply.
2. With regard to Goods with digital elements, the legal provisions shall apply for material and legal defects of the digital elements.
3. We shall not be liable for damages caused by disregarding instructions for use and the required maintenance intervals.
4. Replaced parts pass into our ownership.
5. In addition, the following applies for Customers who are traders:
a. The statutory provisions apply to the rights of the Customer in the event of material and legal defects if not determined otherwise in the following. In any case, the special statutory provisions for final delivery of the Goods to a consumer (recourse of the supplier according to sec. 478, 479 of the BGB) shall remain unaffected.
b. For new items, the warranty period is 1 year. Warranty is excluded for used items.
c. In the case of a defect, we are entitled to amend the purchased item or to deliver a new one at our discretion.
d. In case of failure of the subsequent performance, the Customer shall be entitled to reduce their payment or to cancel the contract at their discretion. The subsequent performance shall be deemed to have failed after the second unsuccessful attempt.
e. Asserting warranty claims due to defects of our deliveries presupposes that the Customer has properly fulfilled their commercially owed inspection obligation and obligation to give notice of defects if possible in the course of ordinary business. The statutory provisions (sec. 377, 381 of the HGB) shall apply for the commercial inspection obligation and obligation to give notice of defects with the following proviso: The inspection obligation of the Buyer is limited to defects that become evident while checking the Goods from the outside including the shipping documents (e.g. transport damage, wrong or short delivery) or are noticeable during quality control. If an acceptance inspection was agreed, there is no separate inspection obligation. Otherwise, it depends on the extent to which an inspection is possible in consideration of the circumstances of the individual case in the ordinary course of business. The obligation to give notice of defects discovered at a later time shall remain unaffected. Notwithstanding the inspection obligation, the notice of defects is deemed immediate and in due time in any case if it is sent within 5 working days as of discovery of the defect or as of the delivery for obvious defects.
f. We do not give any warranty for damage resulting from natural wear and tear. Furthermore, we do not give any warranty for damages caused by improper handling, e.g. by improper use, non-compliance with the operating and maintenance instructions, faulty installation or commissioning, faulty repairs, excessive load, use of unsuitable consumables or other materials unless they may be attributed to a fault on our part.
g. Insofar as we have installed superstructural parts and systems on vehicles, the warranty obligation only refers to the superstructural parts and systems pursuant to the respective installation guidelines of the manufacturer. The warranty for the vehicle we have equipped with superstructural parts and systems is granted by the vehicle’s manufacturer, unless the defect is due to superstructural parts and systems provided by us.
h. If the Buyer has determined the structure or if they prescribe the use of a certain material despite us having advised them of our concerns, our warranty will not cover any defects possibly created by them.
i. In case of remedy of defects, we are obligated to bear all expenses required for the purpose of remedy of defects, including but not limited to transport, travel, labour and material expenses unless they are increased by the delivery being forwarded to another location outside of the Buyer’s country. We will only bear the above costs to the limit of proportionality of those costs which would have been incurred by repair in the Buyer’s country; any costs exceeding such limits shall be borne by the Buyer themselves.
6. Insofar that our liability is excluded, this also includes the personal liability of our employees, representatives and vicarious agents.
7. The above restriction and shortened respites do not apply in the case of damages arising from injury to life, body or health or for other damages due to wilful or grossly negligent violation of duty or bad faith on the part of Paul Nutzfahrzeuge and for damages covered by liability pursuant to mandatory statutory provisions such as the Produkthaftungsgesetz [German Product Liability Act] and in the event of the assumption of guarantees or rights of recourse according to sec. 478, 479 of the BGB.
X. Liability, exclusion of liability
1. We are always fully liable for claims arising from defects caused by our representatives or vicarious agents in the event of injury to life, body or health, wilful or grossly negligent violation of duty, promises of guarantee if agreed, or insofar as the scope of application of the Produkthaftungsgesetz applies.
2. In the event of violation of material contractual duties whose fulfilment is required to make possible the proper execution of the contract and in whose fulfilment the other party may regularly trust (material obligations) due to minor negligence by us, our legal representatives or vicarious agents, the amount of the liability shall be limited to the damage foreseeable at the time of conclusion of the contract and the damage which may typically be expected to be incurred.
3. Otherwise, claims for reimbursement of damages are excluded.
XI. Secrecy, data protection
1. The parties hereunder undertake to treat all non-public commercial and technical information they gain knowledge of due to the business relationship as trade secrets regardless of its form. This includes but is not limited to drawings, sketches, technical data, business transactions, processes and methods, figures, plans, calculations, prototypes, product specifications and all other information and documents (hereinafter collectively referred to as Documentation) which were provided to the parties for the purpose of the contract or of which they have gained knowledge otherwise which must be kept strictly confidential from third parties and may not be made available or used for third parties without the other party’s prior written consent unless a disclosure is required for proper execution of the contract or due to legally effective decisions or regulatory actions. If information must be disclosed to third parties, such disclosure must be limited to the scope required for proper execution of the contract or required according to the legally effective decision or regulatory action. On their part, third parties are obligated to protect the confidentiality of the received information in line with the above provisions. The secrecy obligation shall lapse if and insofar as the knowledge contained in the information has become general knowledge. The above obligations shall survive the termination of the contractual relationship.
2. The parties to the contract will process the data required for handling their transactions in compliance with the data protection provisions of the GDPR. We process personal data of the persons working for the Customer within the context of execution of the contract and the associated initiation of the contract. This includes e.g. information on the respective persons (name, address, e-mail address, phone number). The legal basis for this is Art. 6 (1), sentence 1, point (b) of the GDPR. To such an extent, Paul Nutzfahrzeuge is the controller responsible for the data processing.
3. All personal and contract data (address, phone, name, among others) from the contract and the contracts and agreements associated with it (e.g. warranty, financing or leasing contracts) are collected, processed, transmitted or used for the fulfilment and execution of the contracts and agreements by us and, if and insofar as required for fulfilment of the contracts, by the vehicle importer, the vehicle’s manufacturer and affiliated companies and service providers commissioned in this regard or any partner companies or third parties (e.g. the financing bank) that are involved.
XII. Performance exploitation right to documentation, drawings, plans etc.
1. Paul Nutzfahrzeuge reserves the title and all performance exploitation rights to all calculations, drawings, plans and other technical documentation and materials (e.g. software, finished and semi-finished products), tools, templates, prototypes we have provided to the Buyer before and after concluding the contract.
2. Such Documentation shall only be used for the performance of the contract and shall be returned after fulfilling the contract.
3. Without our written consent, the Buyer may not use, copy, reproduce or hand over such Documentation to third parties or disclose it. The Documentation shall be kept secret from third parties, even after termination of the contract. The secrecy obligation shall lapse only if and insofar as the knowledge contained in the provided Documentation has become general knowledge.
4. If we use symbols or numbers to describe the order or the ordered item, no rights may be inferred from this fact alone.
XIII. Information on the ODR platform – dispute resolution for consumers
1. The European Commission provides a platform for online dispute resolution (ODR) which you can find under http://ec.europa.eu/consumers/odr/. Our e-mail address for consumer complaints is firstname.lastname@example.org
2. We are not obligated and not willing to participate in dispute resolution proceedings before a consumer arbitration board.
XIV. Choice of law – place of jurisdiction for traders – contract language
1. The contract is subject to German law excluding the UN CISG. For consumers, this choice of law is applicable only insofar as the granted protection is not cancelled by mandatory provisions of the country in which the consumer has their regular domicile.
2. The contract language is German.
3. We store contracts electronically; however, for data protection reasons, the Buyer may no longer view them after the contract has been concluded.
4. If the Buyer is a trader, a corporate body under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from contractual relationships between the Buyer and us is the domicile of Paul Nutzfahrzeuge. In addition, we are also entitled to bring a suit against the Buyer at their general place of jurisdiction.
Last updated: 29/09/2022