Automatic Translate from German to English. Original version, please view on the German language site under "unsere AGBs". 

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GENERAL TERMS AND CONDITIONS

 

I. General

 

(1) The following General Terms and Conditions (hereinafter: GTC) are an integral part of all our offers for the sale and delivery of used truck cranes, mobile cranes, construction machinery and their spare parts to entrepreneurs. The GTC apply to all present and future business relations with our contractual partners (hereinafter: Customer).

 

The GTC are an integral part of all contracts that we conclude with our customers. We hereby expressly object to the inclusion of any deviating or supplementary general terms and conditions of the customer. They shall not become part of the contract unless the validity of the customer's general terms and conditions is expressly acknowledged by us in writing.

 

 

II. conclusion of contract

 

1. our offers for the sale of truck & mobile cranes, construction machinery and their spare parts are made via various platforms on the Internet, newsletters, presentations at construction sites and various depots and other sales channels. The offers are subject to change. Intermediate sales remain reserved.

 

(2) Based on a verbal, telephonic, written or telex/electronic order of the customer, we shall first issue an order confirmation to the customer and issue an invoice to the customer. Herewith the sales contract is legally effective. The customer is obliged to make a non-refundable down payment for the object of purchase in accordance with the specified payment schedule.

2.1 If the customer has not paid the deposit by the date specified in the payment agreement or invoice, we are no longer bound by the customer's order. Rather, the machine/article etc. can be offered for sale again by us to third parties without restriction. Any claim for compensation on the part of the customer - of whatever nature - is excluded upon expiry of the acceptance period. In the event of non-payment, the seller may exercise his legal rights and demand 5% to 10% of the stipulated purchase price from the customer. The customer is not entitled to claim further damages for non-performance.

2.2 If the customer has paid the deposit by the date specified in the payment agreement or invoice and later withdraws from the contract or misses the next payment deadline, we are no longer bound by the customer's order. Rather, the machine/item etc. can be offered for sale again by us to third parties without any restrictions. A claim for compensation by the customer - of any kind whatsoever - is excluded upon expiry. The deposit paid is forfeited and will not be refunded to the customer. The customer is not entitled to claim further damages for non-performance.

3. information published by us or third parties on the internet, in catalogs, brochures and other publications in text or image form (e.g. descriptions, illustrations or drawings) on the quality of our products (including weight and dimension specifications including payload specifications) and their possible uses shall not constitute quality guarantees and shall only become part of the contract if this has been expressly agreed in writing.

 

 

4. we reserve all rights, in particular ownership and copyright, to the documents, drawings, illustrations, specifications, etc. provided to the customer. The customer may use these exclusively within the scope of the contractually intended purpose. They are to be treated as strictly confidential and may not be made available to third parties without our prior written consent. If an order is not placed, all documents provided to the customer shall be returned to us immediately upon our request.

 

Supplements, amendments or ancillary agreements to the purchase contract require our written confirmation to be effective.

 

III. prices

 

The prices quoted by us are net prices plus the respective statutory value added tax, which the customer must pay at the statutory rate in the case of transactions subject to value added tax. If, in the case of an agreed fixed price, the prices of the upstream suppliers for the ordered machine increase, we shall be entitled to increase the fixed price by the same amount in relation to these higher supplier costs. Insofar as the purchase contract with regard to a machine is not concluded immediately upon collection and is not paid immediately in cash, but a longer delivery period has been agreed for the delivery and we notify the customer of a significant price increase compared to the price stated in the purchase contract due to higher prices of the supplier, the customer shall be entitled to withdraw from the contract within two weeks after receipt of the notification of the price increase.

 

Unless otherwise expressly agreed in writing, our prices are exclusive of transport, insurance and packaging. Any customs duties, fees or other costs (e.g. registration costs) shall also be borne by the customer. Separate packaging requests of the customer will be invoiced separately. We are entitled to transmit invoices to the customer electronically.

 

3. prices are subject to possible price increases due to increases in customs duties, changes in official exchange rates or other expenses. Such increases shall be subject to the customer's obligation to pay. No right of withdrawal can be derived from such price increases.

 

IV. Terms of payment

 

1. the customer is obliged to pay in full for the object of purchase, machine, etc. immediately before acceptance, in accordance with the date specified in the payment agreement or invoice. If the customer has not paid the purchase price in full by the date specified in the payment agreement or invoice, we are no longer bound by the customer's order. Rather, the machine/article etc. can be offered for sale again by us to third parties without restriction. A claim for compensation by the customer - of any kind whatsoever - is excluded. The customer is not entitled to claim further damages for non-performance.

In case of non-payment, the Seller may exercise its legal rights and retain amounts paid as down payment from 5% to 10% of the determined purchase price.

2. the customer shall pay the price agreed with him in full in accordance with the payment schedule and immediately before acceptance of the machine etc.. If a separate payment agreement has been made with the customer in an individual case and the customer is in default with its payment obligation, we shall be entitled to charge the customer default interest in the amount of 9 percentage points above the base interest rate. However, we reserve the right to prove higher damages caused by default to the customer and to claim them from the customer.

 

The customer shall be at liberty to prove a lower loss. If an installment payment agreement is made with the customer, we shall be entitled to terminate this installment payment agreement vis-à-vis the customer and to demand immediate payment of the remaining loan amount if the customer defaults on an amount exceeding the amount of one installment.

Irrespective of this, we shall be entitled to withdraw from the purchase contract and to reclaim the object of purchase on the basis of our reservation of title if the customer is in arrears with an amount of more than one installment and does not settle the arrears despite our payment reminder. In addition, we are entitled to claim further damages for non-performance.

1. Our damage amounts to 20 % of the net claim from the order, unless we prove higher damage to the customer.

2. If partial payments have been agreed, these shall not be refunded. The customer shall not be entitled to exercise a right of retention or to offset counterclaims.

 

3. in the event of default in payment, the customer undertakes to reimburse us in full for all reminder charges, costs and cash outlays associated with the collection of the claim, so that we may not under any circumstances incur costs from the collection of its claims, under any title whatsoever.

 

4. partial payments by the customer shall be deemed to have been made first against our oldest claim against the customer.

 

V. Delivery, delivery period

 

1. delivery of the object of purchase, machine, etc., unless otherwise agreed in writing, shall be made exclusively after full payment of our claims / invoices.

 

2. delivery dates or delivery periods shall only apply if they have been agreed with us in writing. If we are unable to comply with the agreed delivery or other performance obligations despite all efforts, the customer shall grant us a reasonable period of grace, at least four weeks, for subsequent performance. He may only assert the rights arising from this contract after the unsuccessful expiry of this grace period. In addition to delivery, the customer may only demand compensation for damage caused by delay if we are guilty of intent or gross negligence. This damage caused by delay is capped at 5% of the order value. In the case of slight negligence, liability is excluded. Further claims and rights of customers, such as liability for consequential damages, are excluded.

 

If our contractual performance becomes impossible or excessively difficult due to force majeure, official measures, shutdown, strike or similar circumstances - also at our suppliers - we shall be released from the obligation to deliver and perform for the duration of the hindrance and its after-effects, so that agreed delivery and performance obligations shall be extended accordingly. These aforementioned events shall also entitle us to withdraw from the contract. Any claim for compensation on the part of the customer - of whatever nature - is excluded. The customer is not entitled to claim further damages for non-performance. We undertake, in the event of non-delivery or insufficient delivery to our customer, to assign our claims against our suppliers to the customer upon request.

4. compliance with the delivery dates shall be conditional upon the timely receipt of all preliminary services to be provided by the customer, in particular specifications, timely delivery of chassis, provision of permits or documents by the customer and compliance with the terms of payment, failing which the delivery date shall be postponed by the duration of the delay incurred.

 

VI Transfer of Risk, Default of Acceptance

Unless otherwise expressly agreed in writing, delivery shall be made "ex works" (Incoterm, latest version) at the named place. The risk of accidental loss or accidental deterioration of the machines etc. delivered by us shall pass to the customer upon handover to the customer. In the event of transport or shipment, the risk shall pass to the customer upon handover to the forwarder or carrier. The customer is responsible for securing the load. The load is secured at the expense and risk of the customer. If the delivery is loaded onto the customer's means of transport by our employees, they shall be deemed to be the customer's vicarious agents.

 

2. if the delivery item is shipped by us to a place other than the place of performance at the customer's request, this shall be at the customer's risk and expense. We shall be free to choose the transport route and the transport company. Insurance shall only be taken out at the express request of the customer and at the customer's expense.

 

3. if the acceptance of the machine etc. is delayed due to circumstances on the part of the customer, the goods shall be stored at the customer's risk and expense. The storage fee shall be double the amount customary locally for licensed warehouse keepers. The customer shall not be entitled to any claims for damages arising from a delay in this respect. For its part, it shall reimburse the additional costs incurred as a result before the start of the continuation of the delivery.

 

4. default of acceptance shall also occur in the event that the creditworthiness or solvency of the customer is to be doubted. In this case, we are entitled to demand a bank guarantee at the customer's expense.

 

5. after handing over the crane or other item sold by us to the customer or the transport company, we are in no way responsible for the further condition of the product and are also not liable for any warranty claims. 

 

VII. Competition law

 

(1) We reserve all rights, in particular ownership, competition and copyright, to the documents, drawings, illustrations, specifications etc. provided to the customer. The customer may use these exclusively within the scope of the contractually intended purpose. They are to be treated as strictly confidential and may not be made accessible to third parties without our prior written consent.

 

2.The customer may not use supplier data or supplier-related data, which he has obtained through our activity, for himself in any way. This obligation does not include the right of the customer to forward all data to third parties which are necessary for the execution of the order. The customer may not itself enter into direct business contact with our suppliers and may not act for them either directly or through third parties. Furthermore, the customer undertakes not to enter into any business contact with our suppliers if the latter or a third party commissioned by them establishes the contact.

 

3. the supplier may not use customer data or customer-related data, which he has obtained through our activity, for himself in any way. This obligation does not include the right of the supplier to forward all data to third parties which are necessary for the execution of the order. The supplier may not itself enter into direct business contact with our customers and may not act for them either directly or through third parties. Furthermore, the supplier undertakes not to enter into any business contact with our customers if the latter or a third party commissioned by them establishes the contact.

 

4. in the event of any infringement on the part of the customer, a contractual penalty in the amount of 20% of the total order volume shall be paid to us.

VIII. Warranty, liability

 

The following applies to the sale of used vehicles or used machinery:

1. the used machine or the used purchase item is sold under exclusion of any warranty. The machine etc. is sold as seen, tested and approved by the customer,

 

without representations, warranties or conditions expressed or implied.

2. any liability on our part for consequential damages of any kind, including, but not limited to, the withholding of deliveries due to unpaid counterclaims, as well as loss of profit shall be excluded in its entirety.

3. the speedometer or hour meter reading does not provide any guarantee for the mileage of the vehicle or the machine. Product liability claims are excluded.

 

IX. Property right

 

1. the object of purchase, the machine, etc. remains our property until full payment of the purchase price with all ancillary charges, interest and costs. The object of purchase delivered by us shall remain our property until complete fulfillment of all liabilities of the customer from the current business relationship with us.

The customer is obligated to maintain our ownership accordingly even if the object of purchase is not intended directly for the customer but for a third party, whom the customer must also expressly point out our reservation of ownership. The customer shall treat the object of purchase with care on the basis of our reservation of title. Until payment has been made in full, the customer shall be obliged to notify us immediately of any change in his place of business and any change in the location of the object of purchase and to allow us access to the object of purchase at all times. In the event of access by third parties, the customer must point out our ownership. Actual or legal access of third parties to the object of purchase as well as its damage or loss shall be notified to us in writing without delay. In the event of seizure, the seizure record or the seizure order must be submitted to us. The customer shall reimburse any costs for interventions by us that become necessary.

The object of purchase subject to retention of title may only be sold by the customer in his regular business transactions if it is ensured that the claims from the resale are transferred to us. The customer must inform us immediately of the sale, stating the name of the third party purchaser. The customer shall also notify us immediately of any leasing, stating the name of the tenant.

Pledging or assignment of the object of purchase as security to third parties is only permitted with our express written consent. The customer already now assigns to us the claims arising from the resale in the amount of the value of the object of purchase with all ancillary rights and priority over the rest. We hereby accept this assignment. However, the customer shall remain entitled to collect the claims as long as he duly meets his payment obligations towards us.

Otherwise, in particular in the event of default in payment, we shall be entitled to collect the assigned claims ourselves and to notify the third-party debtor accordingly. If the customer defaults on the fulfillment of an obligation secured by the retention of title in whole or in part, or if his financial circumstances deteriorate significantly, we shall be entitled to withdraw from the contract and to demand the return of the object of purchase. Furthermore, we shall be entitled to obtain direct possession of the vehicle or the machine by way of self-help if the customer does not comply with our demand for surrender.

 

(3) If the object of purchase is combined or mixed with objects of third parties, we shall acquire co-ownership of the resulting uniform object in the ratio of the value of the object of purchase delivered by us to the mixed or combined object.

4. in case of an existing current account relationship, the right of ownership shall remain valid as long as not all claims mentioned in this point have been settled and the entire balance from the current account relationship has been covered.

 

X. Final provisions

 

1. changes and additions to these GTC are published online and apply only to the respective contract. This also applies to a cancellation of this Кlause.

 

 

(2) If individual provisions of our General Terms and Conditions are invalid or void in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.

The contractual relationship with our customers shall be governed exclusively by the laws of the Federal Republic of Germany. The application of international sales law, in particular the UN Sales Convention, is excluded. For customers who are registered traders, legal entities under public law or special funds under public law, the place of performance and jurisdiction is the location of our registered office.