General Terms and Conditions of Sale of Hobby-Wohnwagenwerk Ing. Harald Striewski GmbH
I. Preface - Scope of Application
1. All our deliveries and services are exclusively based on our General Terms and Conditions of Sale below; we do not acknowledge any terms of the Buyer that differ from or conflict with our Terms of Sale, unless we have expressly confirmed their application in writing. Our Terms of Sale shall also apply if, in knowledge of terms of the Buyer that differ from or conflict with our Terms of Sale, we perform the delivery to the Buyer without reservation.
2. All agreements concluded between us and the Buyer upon the conclusion of the Agreement are documented in writing in the Agreement including these Terms of Sale. Our employees are not authorized to enter into oral agreements that deviate from the written contractual agreement.
3. Our Terms of Sale shall only apply to entrepreneurs as defined by Sec. 14 BGB [German Civil Code], legal entities governed by public law and special assets under public law.
4. Our Terms of Sale shall apply to all present and future business relations with the Buyer.
II. Conclusion of the Agreement/Transfer of Rights and Obligations of the Buyer
1. Our offers are subject to change. To the extent reasonable, we reserve the right to make technical changes, in particular changes to the construction or shape and deviations in color.
2. If the Buyer's order qualifies as an offer, the Buyer shall be bound to it for a period of three weeks. The purchase agreement will enter into force once we confirm the acceptance of the order without reservations within the above mentioned period, or once we perform the delivery.
3. Transfers of the Buyer's rights and obligations under the purchase agreement require our prior written approval.
III. Prices and Terms of Payment
1. Unless otherwise specified in the order confirmation, our prices apply "ex works".
2. Our prices do not include the statutory sales tax; the respectively applicable statutory sales tax amount is indicated separately on the invoice.
3. The deduction of discounts requires a separate written agreement.
4. The purchase price and amounts for ancillary services are due upon the handover of the purchase object - however, no later than after the receipt of the notice that the purchase object is ready for dispatch - and the provision or delivery of the invoice.
5. If partial payments have been agreed, the remaining outstanding amount shall be due immediately if the Buyer is fully or partially in default with at least two subsequent installments and if the amount in default constitutes at least 1/10 of the purchase price.
6. The Buyer shall only be allowed to offset its claims against our claims if its counter-claims have been established by final judgement, are undisputed or have been acknowledged by us. In addition, the Buyer shall be entitled to a right of retention if its counter-claim is based on the same contractual relationship.
7. If the Buyer is in default, interest in the amount of 9 percentage points above the base interest rate p.a. shall be charged on the respective outstanding amount. Claims for compensation of further default damages shall remain unaffected.
8. Money orders, checks or bills of exchange shall only be accepted after a respective special agreement and only on account of performance; any collection or discount charges will be charged.
IV. Delivery Terms
1. The clarification of any technical questions shall be a precondition for the delivery time specified by us.
2. In addition, the proper fulfillment of the Buyer's obligations in due time shall be a precondition for the fulfillment of our delivery commitment. The defense of non-performance of the contract (Sec. 320 BGB) and the defense of uncertainty (Sec. 321 BGB) shall be reserved.
3. If the Buyer culpably defaults on acceptance or if it culpably breaches other obligations to participate, we shall be entitled to claim compensation for the damages incurred through such default or breach, including compensation for any potential additional expenses. Further claims shall be reserved.
4. Unless otherwise specified in the order confirmation, delivery "ex works" is agreed.
5. Any event of Force Majeure for which we are not responsible pursuant to Sec. 276 BGB shall release us from the performance of our contractual obligations for the duration of these events. We undertake to inform the Buyer immediately about the occurrence and expected duration of such an event. If the duration of such an event exceeds three months, each of the Parties shall be entitled to withdraw from the Agreement. Considerations shall be reimbursed immediately.
6. If our delivery is delayed due to negligence, our liability for damages in addition to performance (damages due to delay) shall be limited to a maximum of 5% of the delivery value and our liability for damages in lieu of performance shall be limited to 25% of the delivery value. Further claims of the Buyer are excluded - even after the expiry of a deadline for performance set for us. This does not affect liability for culpable injury of life, body, or health.
1. In accordance with the statutory provisions, the Buyer may withdraw from the Agreement if we are responsible for the breach of duty; however, in the case of defects (VII.) the statutory conditions continue to apply.
2. In the case of breach of duty, the Buyer shall, upon our request, announce within a reasonable period whether it withdraws from the Agreement due to the breach of duty or if it insists on the delivery.
VI. Retention of Title
1. We retain the title to the purchase object until all payments arising from the business relationship with the Buyer have been received. If a current account relationship exists between us and the Buyer, the retention of title shall also refer to the respectively acknowledged balance; the same applies if the balance is not acknowledged and if, instead, a "causal" balance is drawn.
2. If the Buyer breaches the Agreement, especially if it defaults on payments, we shall be entitled to withdraw from the purchase agreement after a reasonable grace period and to demand the return of the purchase object; statutory cases of dispensability of the grace period, especially cases where a grace period is unreasonable, shall remain unaffected.
3. The Buyer undertakes to treat the purchase object with care; it shall, in particular, be obligated to sufficiently insure the purchase object at its expense against damage from fire, water, hail and theft at replacement value. If the Buyer commissions the purchase object, it must obtain comprehensive insurance coverage for the duration of the retention of title. Upon our request, the Buyer shall provide us immediately with evidence of such insurance. If, despite a written warning, the Buyer does not fulfill this obligation, we shall be entitled to obtain the insurance at the Buyer's expense. In this case, the Buyer shall be obligated to reimburse us for the contribution payments. Should maintenance and inspection work be necessary, the Buyer shall perform these at its own expense in due time.
4. If the purchase object is pledged or in case of any other third-party interference, the Buyer shall notify us immediately so that we can file an action pursuant to Sec. 771 ZPO (German Code of Civil Procedure). If the third party is not able to reimburse us for the costs of an action incurred in and out of court pursuant to Sec. 771 ZPO, the Buyer shall be liable for the loss incurred by us.
5. The Buyer shall be entitled to sell the purchase object in the ordinary course of business; however, at this point in time already, it shall assign to us any claims against its buyers or third parties in the amount of the final invoice amount (including VAT) of our claim to which it is entitled due to selling the purchase object, irrespective of whether the purchase object was sold without or after processing. The Buyer shall be entitled to collect such claim even after the assignment. This shall not affect our right to collect the claim ourselves. However, we undertake not to collect the claim if the Buyer fulfills its payment obligations arising from the collected proceeds, does not default on its payments and, in particular, if no application for the opening of insolvency proceedings has been filed and if there is no stoppage of payments. If any of the above situations occurs, we shall be entitled to request the Buyer to disclose to us the assigned claims and the pertaining debtors, to provide us with all information necessary for the collection of the claims, to hand over to us all the pertaining documents and to inform the debtors (third parties) about the assignment.
6. If, pursuant to the statutory regulations applicable for the jurisdiction in which the goods are located, the retention of title or assignment is not valid, the security corresponding to the retention of title or the assignment in this area shall be considered agreed. If the participation of the Buyer is required for the effectiveness of such rights, upon our request, it shall be obligated to take all measures necessary for the substantiation and maintenance of such rights at its own expense.
7. We undertake to release the securities we are entitled to upon the Buyer's request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we may choose the securities to be released at our own discretion.
VII. Quality and Liability for Defects
1. We shall not be liable for any damages that have been caused due to the fact that
- the purchase object was treated improperly by the Buyer or third parties, especially if improper interventions or repairs have been performed,
- the purchase object has been equipped with unsuitable spare or supplementary parts or accessories; or
- the Buyer has not observed the provisions regarding the treatment, maintenance and care of the purchase object (e.g. operating manual).
Natural wear and tear shall be excluded from the liability for defects.
2. Warranty claims do not exist in the case of minor deviations from the agreed quality or in case of minor interference with the usability.
3. With regard to weight specifications, deviations of up to 5 % are possible. Special equipment increases the empty weight and reduces the payload.
4. In order for the Buyer's warranty rights to apply, the Buyer must have duly fulfilled its examination and notification obligations pursuant to Sec. 377 HGB [German Commercial Code]. Notices of defects must be made in writing. The Buyer shall bear the burden of proof for all preconditions of the claim, in particular for the defect itself, for the time of the occurrence of the defect and the timeliness of the notice of defect.
If a defect exists, we reserve the right to choose the type of supplementary performance.
6. The warranty period for warranty claims is 12 months as of the delivery of the item. In deviation from this, the statutory warranty period of two years shall apply to claims for damages caused by willful or grossly negligent breaches of duty as well as to the cases specified in Sec. IX. item 2.
7. The statutory limitation period in the case of recourse for delivery pursuant to Sections 478, 479 BGB shall remain unaffected. Recourse claims against us pursuant to Sec. 478 BGB (recourse of the entrepreneur) shall only exist if the Buyer has not entered into any agreement exceeding the statutory warranty claims with its customer. The Buyer shall only fulfill justified claims for supplementary performance of its customers after conferring and consulting with us; the Buyer shall be obligated to inform us of the expected costs of the supplementary performance. If the Buyer provides its own supplementary performance without our prior written consent, it shall be at its own risk.
VIII. Return of Spare Parts, Accessories, Tools and Consumables
1. Spare parts, accessories, tools and consumables delivered by us must be examined by the Buyer for any wrong deliveries, defects and deviations in quantity immediately upon delivery.
2. The Buyer shall be entitled to return spare parts it erroneously ordered within a period of 30 days after the delivery. The Buyer shall ensure proper packaging of the goods during their return. The return shall take place at the Buyer's expense and risk. The return shall be considered a withdrawal from the Agreement. Tailor-made parts shall be excluded from the return option.
3. We charge a restocking fee in the amount of 10% of the net value of the goods, at least, however, EUR 15.00, for returns that are not due to any fault of ours.
4. In case of a wrong delivery of any of the goods mentioned under item 1 above by us, the Buyer shall be entitled to the statutory warranty rights pursuant to the provisions under items VII. and IX. of these Terms of Sale. If the Buyer demands a replacement delivery, the wrongly delivered goods shall be returned within 30 days after the delivery, unless the Buyer proves that the wrong delivery could not be identified in the context of the due examination of incoming goods.
5. Returns outside the 30-day period shall only be admissible after the prior written consent of the head of our spare parts department.
1. Our liability shall be based on the statutory provisions if the Buyer asserts claims for damages based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents, or on a culpable breach of a material contractual obligation. Material contractual obligations are obligations the fulfillment of which is necessary for the achievement of the contractual purpose and the fulfillment of which the contractual partner generally does and can rely on. As long as we cannot be accused of any intentional breaches of contract, the liability for damages in the above mentioned cases shall be limited to the foreseeable damage typically incurred in such cases.
2. This shall not affect liability for culpable injury of life, body, or health; this shall also apply to the mandatory liability under the product liability law.
3. Unless otherwise stipulated above, liability for damages exceeding the liability specified in this item VIIII shall be excluded, irrespective of the legal nature of the asserted claim. This shall apply, in particular, to claims for damages due to other breaches of duty or due to tort claims for the compensation of material damage pursuant to Section 823 BGB. In addition, the limitation of liability pursuant to item IV 6 shall apply to liability due to delays.
4. The provisions pursuant to para. 1 to 3 shall also apply if the Buyer claims futile expenses instead of damages in lieu of performance.
5. If the liability for damages is excluded or limited for us, the same shall apply to the personal liability for damages of our employees, workers, staff members, representatives and vicarious agents.
X. Place of Jurisdiction - Place of Performance - Applicable Law
1. If the Buyer is a merchant, our place of business shall be the exclusive place of jurisdiction; we are, however, also entitled to proceed against the Buyer at the court of its place of residence.
2. If the Buyer is a merchant and unless otherwise specified in the order confirmation, our place of business shall be the place of performance for all obligations arising from the Agreement, including the payment obligations of the Buyer.
3. The law of the Federal Republic of Germany shall apply; the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
XI. Data Protection
We shall be entitled to process and store the data of the Buyer relating to the respective purchase agreements if this is necessary for the performance and execution of the purchase agreement, and as long as we are obligated to store this data due to statutory provisions.
Last updated: September 2014