Conclusion of contract/transfer of rights and obligations of/from the buyer
The buyer shall be bound to the order for no longer than ten days, for no longer than two weeks in connection with utility vehicles. The contract of sale shall be deemed concluded when the seller confirms the acceptance of the orderin wriíting for the specifically described object of purchase within the respectively designated time period, or when the delivery has been carried out. However, the seller shall be obligated to inform the buyer immediately if he/she does not accept the order.
The transfer of rights and obligations from the buyer arising from the contract of sale shall require the written consent of the seller.
Upon delivery of the object of purchase and the handing over or delivery of the invoices, the purchase price and costs of ancillary services shall be due for payment.
The buyer may only offset claims of the seller, provided that the counterclaim of the buyer is uncontested or an enforceable judgment exists; a right of retention may only be exercised insofar as claims arising from the contract of sale are involved.
Delivery and delivery delay
Delivery dates and terms of delivery, which can be scheduled as binding or non-binding, shall be specified in writing. Terms of delivery shall commence upon the conclusion of contract.
The buyer may demand that the seller carry out a delivery - ten days (or two weeks in connection with utility vehicles) after a non-binding scheduled delivery date or a non-binding term of delivery has been exceeded. The seller shall be in arrears following receipt of the request. Should the buyer be entitled to compensation for damages caused by default, these shall be limited to 5% of the stipulated purchase price at most, in the event of slight negligence on the part of the seller. Furthermore, if the buyer also wishes to withdraw from the contract and/or demand compensation for damages instead of performance, he/she must grant the seller an appropriate deadline within which to carry out the delivery after the expiration of a 10-day time period in compliance with Setence 1. Should the buyer have a claim to compensation instead of performance, this claim shall be limited to 10% of the negotiated purchase price at the most in cases of slight negligence. Should the buyer be a legal person under public law, special funds or property under public law, or a businessperson carrying out commercial activities or self-employed professional activities, compensation claims in cases of slight negligence shall be excluded. Should it be impossible for the seller to carry out the delivery when he/she is in default, and should this be due to accidental causes, the seller shall be liable within the negotiated limits described above. The seller shall not be liable, if the damages would still have occurred in the case of a punctual delivery.
Should a binding scheduled delivery date or a binding term of delivery be exceeeded, the seller shall be in default upon exceeding the scheduled delivery date or the term of delivery. The rights of the buyer shall then be determined according to Numeral 2 Sentences 3 to 6 of this Section.
Force majeure, or operational disturbances arising for the seller or his/her suppliers which temporarily prevent the seller from delivering the object of purchase on the stipulated date or within the stipulated time limit through no fault of his/her own, shall extend the dates and time limits designated in Numerals 1 to 3 of this Section for the duration of the circumstances caused by this impairment of performance. Should the corresponding disturbances lead to a delay in performance amounting to more than four months, the buyer may withdraw from the contract. Other rights of withdrawal shall remain unaffected therefrom.
The buyer shall be obligated to accept the object of purchase within 8 days upon receipt of the delivery notice. In the event of non-acceptance, the seller may exercise his/her legal rights.
Should the seller request compensation for damages, it shall amount to 10% of the purchase price. Compensation for damages shall be assessed higher or lower, respectively, if the seller substantiates greater damage or the buyer substantiates lesser damage.
The sale shall take place under the exclusion any and all warranty. This shall apply to claims of the buyer due to injuries to life, body or health based on intentional or negligent breaches of duty on the part of the user, a legal representative or a vicarious agent, as well as to claims to other losses or damages based on intentional or grossly negligent breaches of duty on the part of the user, a legal representative or a vicarious agent.
Retention of property/title/proprietray rights
The object of purchase shall remain the property of the seller until his/her demands arising from the contract of sale have been satisfied.
Should the buyer be a legal person under public law, a special fund or property under public law, or an entrepreneur conducting his/her commercial or self-employed professional activities when the contract has been concluded, rights of property retention also remain valid in connection with claims of the seller against the buyer resulting from an ongoing business relationship, until such claims arising from the purchase have been satisfied.
Upon request of the buyer, the seller shall be obligated to relinquish the retention of property, if the buyer has incontestably fulfilled all claims in connection with the object of purchase, and if appropriate security exists for the remaining claims which have resulted from ongoing business relations.
During the period of title retention, the seller shall be entitled to rights of possession in connection with the vehicle registration document.
The seller may withdraw from the contract of sale in the event that payment is defaulted by the buyer.
As long as a retention of proprietary rights is exercised, the buyer may not use the object of purchase or grant third parties the right of use on a contractual basis.
Claims of the buyer concerning material defects shall expire within one year after the object of purchase has been delivered to the customer.
In deviation from this, the sale of utility vehicles shall be carried out excluding all warranties for defects, if the buyer is a legal person under public law, a special fund or property under public law, or an entrepreneur conducting his/her commercial or self-employed professional activities when the contract has been concluded.
In the event of a fraudulent concealment of defects, or the acceptance of a warranty for the condition of the object, further claims shall remain unaffected.
The following shall apply for the remedy of defects:
The buyer must assert claims against the seller for a remedy of defects. In the event that such claims are brought forth verbally, the buyer must be given written confirmation regarding the receipt of the notification.
Should the object of purchase fail to operate due to a material defect and upon approval by the seller, the buyer may contact the automotive repair shop closest to the site of the non-functional object of purchase, provided that the location of the non-functiional object of purchase is more than 50 km away from the seller.
Replaced parts shall become the property of the seller.
Under this contract of sale, the buyer may assert claims regarding material defects in connection with parts installed for the remedy of defects, until the statute of limitations has expired.
Should the seller have to compensate damages caused by slight negligence due to legal requirements in accordance with these provisions, the seller shall assume limited liability:
Liability shall only exist for the breach of essential contractual obligations and shall be limited to typical damages foreseeable at the conclusion of contract. This limitation shall not apply to injuries to life, body or health. Insofar as damages are covered by an insurance policy contracted by the buyer for the respective damage event (except insurance on a fixed sum basis), the seller shall only be liable for possible disadvantages for the buyer associated with the latter, e.g., higher insurance premiums or interest-related detriments until claims have been settled by the insurance company.
Irrespective of fault on the part of the seller, eventual seller liability shall remain unaffected in the event that defects have been fraudulently concealed, or in connection with the acceptance of a warranty, the acceptance of procurement risks, or in accordance with the German Product Liability Act.
Liability due to delivery delays is conclusively regulated in Section II.
Legal representatives, vicarious agents and employees of the seller shall be exempted from liability for damages caused by their slight negligence.
Arbitration procedure (Shall only apply to used vehicles with a permissible total weight of not more than 3.5t )
Should the automotive repair shop be a „specialist workshop of the automobile guild“, the parties may - in the event of disputes arising from the contract of sale, but exceptiing disputes about the purchase price – invoke the arbitration board of the automotive industry responsible for the business residence of the seller or for the used automobile dealership. The invocation must be rendered in writing, immediately after knowledge of the contested issue has been obtained, but before 13 months have passed since delivery of the object of purchase.
The decision of the arbitration board shall not preclude legal proceedings.
The invocation of the arbitration board shall suspend the statute of limitation for the duration of the procedure.
The proceedings before the arbitration board shall comply with its business regulations as well as its code of procedure, which shall be made available to the parties by the arbitration board upon request.
An petition to the arbitration board shall be excluded if legal action has already been taken. Should legal action be taken during an arbitration process, the arbitration board shall cease its activities.
The arbitration process shall be free of charge for the contracting party.
Court of jurisdiction
The sole court of jurisdiction for all present and future claims arsising from business relations with merchants, including claims regarding bills of exchange and checks, shall be the business residence of the seller.
The same court of jurisdiction shall apply, if the buyer does not have a general place of jurisdiction within Germany, if he/she moves his/her domicile or main residence away from Germany after the conclusion of contract, or if his/her residence or habitual place of abidance is not known at the time when legal action has been filed.
Furthermore, the court of jurisdiction responsible for the main business residence of the seller shall apply for claims of the seller against the buyer.