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BD Autohaus Construction Machinery Trade

- If you don't understand German, please ask for the English version. By not doing so, you accept this version as applicable. -

 General Terms and Conditions of Sales and Business (AGB-K)

for use between entrepreneurs, legal entities under public law and special funds under public law (“Buyer”) and ITC Machinery Trading GmbH & Co. KG (“Seller”)

 

 

1. Scope – subject matter of the contract

 

(1) These General Terms and Conditions-K apply to contracts for the purchase of construction machinery and construction equipment in accordance with the contract concluded between the seller and the buyer. For long-term business relationships with the seller's customers, these General Terms and Conditions are the contractual basis and are accepted by the customer for the entire duration of the business relationship upon conclusion of the first contract, including the following conditions.

 

(2) All additional agreements deviating from the following conditions and agreed with a representative or employee require written confirmation by the seller.

 

(3) These General Terms and Conditions apply exclusively. Any conflicting conditions are hereby expressly contradicted.

 

(4) The buyer waives the assertion of his own purchasing conditions. The latter do not become part of the contract through the delivery or other unconditional provision of services by the seller.

 

 

2. Conclusion of contract

 

(1) The buyer's order represents a binding offer. Previously submitted offers by the seller are non-binding. The contract is only concluded when the seller accepts the order in writing (“order confirmation”).

 

(2) The seller reserves ownership rights and copyrights to cost estimates, illustrations, drawings and other documents. Before passing them on to third parties, the buyer requires the express written consent of the seller.

 

 

3. Obligation of the seller to perform, transfer of risk

 

(1) The scope of the seller's obligation to perform is initially determined by the seller's written order confirmation.

 

(2) The purchase item is delivered “ex works” at the buyer’s risk. The buyer bears the costs of shipping the purchased item and other costs such as taxes and customs duties. The fulfillment of the seller's handover obligation is effected by making the purchased item available and handing it over to the buyer or the transport staff.

 

(3) The seller endeavors to adhere to agreed delivery dates and on the condition that there are no disruptions due to strikes, force majeure or in the deliveries by its delivery companies. In the latter cases, the seller reserves the right to withdraw from the contract in whole or in part or, if it is only a temporary delivery problem, to postpone the delivery date for a short period of time, without the buyer being entitled to the right of withdrawal or other claims. If the assertion of the buyer's rights requires the setting of a reasonable grace period, this is at least two weeks.

 

(4) If the buyer defaults on payment to the seller, the seller is entitled, without special notice and without obligation to compensate for any damage that may arise, to withhold the purchased item until there is no longer any payment arrears.

 

(5) The risk passes to the buyer when the purchased item is handed over to the buyer or when the purchased item is handed over to the transport staff. If the buyer defaults on acceptance or if the service is delayed for other reasons for which the buyer is responsible, the risk passes to the buyer from the day of notification of availability. The buyer bears the costs of storage at the seller's premises or at third parties. The assertion of any additional damage against the buyer remains unaffected by this.

 

 

4. Prices, payment; Offsetting, retention

 

(1) The prices are “ex works” (place of business or warehouse) of the seller, excluding sales tax and excluding freight and packaging. The price stated in the order confirmation is decisive. Prices stated in catalogs, brochures, advertisements or similar are non-binding guide prices.

 

(2) Unless otherwise agreed in writing, the purchase price is due immediately after conclusion of the contract without deduction. The seller is entitled to hand over the purchased item only step by step against payment of the agreed purchase price.

 

(3) Payment is made in cash or free of charge and expenses to the seller's business accounts specified in the invoice.  

 

(4) If the buyer defaults on payment, default interest of 8 percentage points above the respective base interest rate of the Civil Code, but at least 10% of the outstanding amount, will be charged. We reserve the right to assert additional damages caused by default.

 

(5) Offsetting against the seller's purchase price claim is not permitted unless the buyer's claim is undisputed or legally established. The buyer can only assert a right of retention if the seller's purchase price claim and the buyer's claim are based on the same contractual relationship.

 

 

5. Defects, liability

 

(1) The buyer must report complaints of obvious defects in writing within 10 days of receipt of the purchased item, or within 15 days if received abroad. These complaints do not release the buyer from his obligation to pay. If defects are not reported within the aforementioned period, the warranty rights expire. Deadline is sufficient for the timely dispatch. The buyer bears the full burden of proof for all claims requirements, in particular regarding the defect itself, the time of the defect and the timeliness of the complaint.

 

(2) If there is a defect, the seller reserves the right to choose the type of supplementary performance. Parts that are replaced as part of subsequent performance become the property of the seller upon removal.

 

(3) If the buyer himself or through third parties carries out repair work on the purchased item before the seller has had the opportunity to remedy the defects, the seller is not liable for defects and damage that are causally attributable to this work.

 

(4) The warranty period is one year from delivery of the purchased item. This does not apply if the buyer did not report the defect in a timely manner.

 

(5) If the buyer chooses to withdraw from the contract due to a defect after subsequent fulfillment has failed, he is not entitled to any claim for damages due to the defect. If the buyer chooses compensation after subsequent fulfillment has failed, the purchased item remains with him, provided this is reasonable for him. The compensation is limited to the difference between the purchase price and the value of the defective purchased item.

 

(6) No guarantees are given by the seller. Any manufacturer guarantees remain unaffected and do not affect the seller.

 

(7) Purchased items that are used and therefore cannot be treated as new machines or devices are purchased as inspected. If the buyer does not inspect the used item, he is purchasing it to the exclusion of any warranty.

 

The seller points out that he also sells used construction machines and construction equipment that were not intended for the European sales market when they were manufactured. The lack of the CE marking and the underlying so-called conformity procedure does not constitute a defect in the purchased item. 

 

(8) The seller's liability for breaches of contractual obligations and tort is limited to intent and gross negligence. This does not apply in the event of injury to the life, body or health of the buyer and claims due to the violation of so-called cardinal obligations. As far as damage is concerned that does not result from injury to the life, body or health of the buyer, the seller is only liable for the damage that typically arises.

 

(9) To the extent that liability for damages that are not based on injury to life, body or health of the purchaser due to slight negligence is not excluded, such claims expire within one year starting from the time the claim arises or in the case of claims for damages due to a defect from handover of the purchased item.

 

(10) To the extent that liability for damages towards the seller is excluded or limited, this also applies with regard to the personal liability for damages of employees, employees, representatives and vicarious agents.

 

 

6. Retention of title

 

(1) The seller reserves ownership of the purchased items handed over until all claims against the buyer to which he is entitled from purchase contracts have been completely fulfilled, even if the specific purchased item of a relevant purchase contract has already been paid for.

 

(2) The buyer is obliged to treat the reserved goods with care. If maintenance and inspection work is necessary, the buyer must carry this out regularly at his own expense.

 

(3) If the buyer behaves in breach of contract, in particular if payment is delayed or if obligations are breached in accordance with this Section 6 of the General Terms and Conditions, the seller is entitled, after setting a reasonable deadline without success, to withdraw from the purchase contract and demand return of the purchased item. If the reserved goods are in the possession of a third party, the buyer is obliged to inform the seller of the owner and whereabouts and to assign claims for return against the third party to the seller.

 

(4) The buyer is not entitled to transfer the purchased items to others for security purposes, to pledge them or to otherwise impair the seller's property.

 

(5) The buyer is only entitled to resell within the scope of his normal business operations and on the condition that he only transfers ownership to his customer once the customer has paid the price in full. Only to this extent can the buyer acknowledge the consent to the transfer of ownership to a third party. If the purchased item is not paid for in full in cash in the event of resale, the buyer assigns his future purchase price claims to the seller as a precaution upon conclusion of the transaction with the seller, without the need for a special declaration of assignment for the individual resale case. The seller accepts this assignment. At the same time, the buyer assumes the obligation to inform the seller, upon request, of the names of the third-party debtors and the contributions of the assigned claims and to provide the information necessary for the collection of the claim. Unless the seller revokes this at any time, the buyer is authorized to collect these tacitly assigned purchase price claims.

 

The seller can revoke the buyer's rights under this Section 6 Paragraph (5) if the buyer does not properly fulfill his contractual obligations towards the seller, in particular if he defaults on payment.

 

(6) If the purchased items handed over are seized by a third party, the buyer is obliged to inform the enforcement officer of the retention of title. He is also obliged to notify the seller immediately by registered letter enclosing the seizure protocol and an affidavit stating that the seized purchased items are identical to the purchased items handed over by the seller under retention of title and not yet fully paid for. The buyer bears any necessary intervention costs.

 

(7) If the reserved goods are processed, transformed or combined with another item, the seller immediately acquires ownership of the item produced. This is considered reserved goods.

 

(8) In accordance with the above provisions, the buyer also assigns to the seller the claims to secure the seller's purchase price claim against him, which arise from connecting the reserved goods with a property against a third party.

 

(9) If payments are stopped due to insolvency, at the latest when the application for the opening of insolvency proceedings against the buyer's assets is made, the buyer is obliged to immediately sort out the reserved goods handed over by the seller and still existing and the assigned outstanding debts and to submit a precise list of these to the seller.

 

 

7. Obligations of the buyer for a vehicle

 

If the object of purchase is a vehicle, the buyer becomes the owner when the object of purchase is handed over to him. From this point on, the buyer must be responsible at his own expense for compliance with all laws, regulations and administrative acts applicable to the vehicle, especially road traffic and tax regulations. If claims in this regard are asserted against the seller by third parties that arose after the goods were handed over to the buyer, the buyer must indemnify the seller from these claims.

 

 

8. Limitation of personal claims

 

Contrary to Section 195 of the German Civil Code (BGB), the seller's claims for payment expire in five years. Regarding the start of the limitation period, Section 199 of the German Civil Code (BGB) applies.

 

 

9. Form of declarations

 

Legally relevant declarations and notifications that the buyer must make to the seller or a third party must be in writing or text form.

 

 

13. Place of performance, choice of law, place of jurisdiction; severability clause

 

(1) The place of performance for the seller's performance obligation is the seller's place of business or warehouse. The seller's place of business is solely responsible for payments.

 

(2) The law of the Federal Republic of Germany applies to this contract. The validity of the UN Convention on Contracts for the International Sale of Goods is excluded.

 

(3) The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Amberg, Germany.

 

(4) If individual provisions of these General Terms and Conditions-K are ineffective, the parties agree that these provisions must be supplemented by other, legally effective provisions that come as close as possible to the purpose of the agreement. If parts of the agreement are ineffective, the remaining parts remain unaffected.

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