I. Formation of contract/assignment of rights and duties of Purchaser
- The Purchaser shall be bound by hislher order for no more than 10 days. The Purchase Agreement shall be deemed to have been concluded when the Seller either fumishes wrillen confirmation within the acceptance period stated in each case that it has accepted the Order for the Subject of Purchase more particularly described, or effects delivery thereof. However, the Seller shall be obliged to inform the Customer without delay where Seller does not accept the order.
- Assignments of the Purchaser's rights and duties arising from the Purchase Agreement are not valid without the wrillen consent of the Seller.
- The Purchase Price and the Prices for Extra Services shall be due and payable in cash at such time as the Subject of Purchase is delivered and the invoice is delivered or sent to Purchaser.
- The Purchaser may only effect an offset against the claims of the Seller where the counter claim of the Purchaser is undisputed or where a final court judgement exists; the Purchaser shall only be entitled to assert a right of retention to the extent such right is based on claims arising from the Purchase Agreement.
III. Delivery and Delay
- Dates and periods of delivery, which may be the subject of either firm or provisional agreement, shall be stated in writing. Delivery periods shall begin to run as from the time the agreement is concluded.
- Ten days after a provisional delivery date has passed or a provisional delivery period has expired, the Purchaser may demand that the Seller make delivery. The receipt of such demand by the Seller shall cause the Seller to be in default. If the Purchaser has a claim for reimbursement of damages for delay, such claim shall be limited, in the event of ordinary negligence of the Seller, to no more than 5% of the agreed Purchase Price. If the Purchaser wishes, in addition, to rescind the contract and/or to demand damages rather than specific performance, Purchaser must grant the Seller a reasonable period for delivery upon the expiry of the 10-day period pursuant to clause 1 hereof. Where the Purchaser has a claim for damages rather than specific performance, such claim shall, in cases involving ordinary negligence, be limited to no more than 10% of the agreed Purchase Price. Where the Purchaser is a legal person established under public law, a special financial entity of administrative law or an entrepreneur engaged in the exercise of his/her commercial or independent professional activity, claims for damages for ordinary negligence are excluded hereby. Where due to events beyond Seller's control, delivery becomes impossible for the Seller after Seller is already in default of delivery, the scope of Seller's liability shall be governed by the above-referenced limitations on liability. The Seller shall not be liable in cases where the damage is such that it would have occurred even if timely delivery had been made.
- Where a firm delivery date or delivery period is exceeded, Seller's default shall arise immediately upon Seller's having exceeded such delivery date or period. The rights of the Purchaser shall be governed by clause 2, sentences 3 through 6 of this section.
- Force majeure or disturbances to Seller's operations or those of Seller's suppliers, which temporarily and without fault of the Seller prevent the Seller from supplying the Subject of Purchase on the agreed date or within the agreed delivery period, shall act to extend the deadlines and periods set forth in clauses 1 to 3 of this section by a term equivalent to the duration of the disturbances of performance arising from such events. Where such disturbances result in performance being suspended for a period of more than four months' duration, the Purchaser may rescind the contract. Other rights of rescission shall remain unaffected hereby.
- The Purchaser shall be obliged to accept the Subject of Purchase within 8 days from the time of receipt of the notification of readiness to effect delivery thereof. In the event of non-acceptance, the Seller may avail itself of its rights under applicable law.
- Where the Seller demands damages, such damages shall be equal to 10% of the Purchase Price. The damages payable shall be increased or decreased in cases where the Seller proves greater damages or the Purchaser proves that Seller has suffered lesser damages.
V. Reservation of Title
- The Subject of Purchase shall remain the property of the Seller until all of the financial claims of the Seller arising from the Purchase Agreement are sellied in full. Where the Purchaser is a legal person established under public law, a special financial entity of administrative law or an entrepreneur engaged in the exercise of his/her commercial or independent professional activity, such reservation of title shall also continue to subsist with respect to claims of the Seller against the Purchaser arising from their ongoing business relationship until all claims that are connected with the purchase are settled in full. Upon demand of the Purchaser, the Seller shall be obliged to waive its reservation of mle where the Purchaser has indisputably satisfied all claims arising in connection with the Subject of Purchase and reasonable security exists with respect to the remaining claims arising from the parties' ongoing business relationship. The Seller shall have the right of possession over the document of title for the vehicle for the duration of the period of reservation of title.
- Where the Purchaser is in default of payment, the Seller may rescind the Purchase Agreement. Where the Purchaser has further claims for damages rather than specific performance and retakes possession of the Subject of Purchase, Seller and Purchaser agree that Seller shall pay the usual market value of the Subject of Purchase at the time of repossession thereof. At Purchaser's option, exercisable only immediately after repossession of the Subject of Purchase, a publicly appointed and sworn independent expert chosen by Purchaser, e.g. an expert from the Deutsche Automobil Treuhand GmbH (OAT), shall determine the usual market value. The Purchaser shall bear all costs in connection with repossessing and reselling the vehicle. In the absence of proof, such resale costs shall equal 5% of the usual market value. Higher or lower costs shall be assessed, respectively, where the Seller proves higher costs or the Purchaser proves that the Seller has had lower costs.
- As long as retention of title subsists, the Purchaser may not dispose of the Subject of Purchase or grant Third Parties rights to use the same.
- Claims of the Purchaser for defects shall become time-barred one year from the time of delivery of the Subject of Purchase. No claims on the basis of defects shall exist where the defect or damage is allributable to normal wear-and-tear or where such damage has arisen because the Purchaser did not communicate the existence of a defect immediately upon discovering the same or the Subject of Purchase has been improperly handled or where excessive demands have been placed thereon (e.g. in racing competitions). In the event that the existence of defects is intentionally concealed or where a warranty of fitness is given, further claims of the Purchaser shall remain unaffected hereby.
- The following shall apply with respect to procedures for curing defects:
- The Purchaser shall make all claims for cure of defects to Purchaser. Where notification of defects is given orally, the Seller shall provide the Purchaser with a written confirmation of the receipt of such notification.
- Where the Subject of Purchase is unserviceable as a result of a defect, the Purchaser may, with the consent of Seller, seek the services of the nearest available master mechanic closest to the place of the unserviceable Subject of Purchase if the place of the unserviceable Subject of Purchase is located more than 50 km from the Seller.
- Parts that are replaced shall become the property of the Seller.
- With respect to parts installed in connection with the elimination of defects, the Purchaser may make claims for cure of defects until such time as claims for the cure of defects as to the Subject of Purchase become time-barred.
- Where under the provisions of applicable law pursuant to these Terms of Sale, the Seller is obliged to pay compensation for damage arising from ordinary negligence, the liability of the Seller shall be limited as follows: Liability shall exist only in cases of breach of material duties of this contract and shall be limited in scope to such damages as were typical and foreseeable at the time of conclusion of the agreement. This limitation shall not apply in respect of injury to body, life or health. To the extent that the damage is covered by any insurance taken out by the Purchaser for events of this kind (with the exception of policies of Insurance in terms of fixed sums), the Seller's liability shall be limited only to compensation of any losses suffered by the Purchaser, e.g. higher insurance rates or the obligation to pay interest until such time as adjustment of damages is effected by the insurance provider. No liability shall exist with respect to damage caused by a defect of the Subject of Purchase arising as a result of ordinary negligence. Irrespective of fault of the Seller, any and all liability of the Seller for damage arising through intentional concealment of defects, arising on the basis of a warranty or a risk of procurement, or arising under the product liability acts shall remain unaffected hereby. Liability for delay in delivery is dealt with completely in section IV hereof.
- The personal liability of the legal representative, persons employed in performing obligations hereunder and the employees of Seller for damages arising from their ordinary negligence is excluded hereby.
VIII. Choice of forum
- The courts at the place of the registered office of the Seller shall have exclusive jurisdiction for all present and future claims arising from the business relations as between merchants, including claims based on bills of exchange and cheques.
- The same choice of fonum shall apply where the Purchaser does not have a general forum within Germany or where, after the conclusion of this Agreement, the Purchaser moves hislher ordinary place of residence to a place outside Germany, or where the Purchaser's ordinary place of residence or usual whereabouts are unknown at the time of the bringing of the lawsuit. In all other cases, the place of the Purchaser's residence shall apply with respect to claims of the Seller against the Purchaser.