1. General– scope of application
1.1 All of our deliveries and services are governed by our General Conditions of Sale, which you can find below; our company does not recognize conditions of the purchaser that are contrary to or that deviate from our own Conditions of Sale, unless we have indicated our express, written consent to the validity thereof. Our Conditions of Sale shall also apply in the event we undertake to carry out a delivery to the purchaser in accordance with conditions of the purchaser which we understand to be contrary to our own conditions, or which deviate from our own conditions.
1.2 All agreements concluded between this company and the purchaser at the time the contract was made have been recorded in the contract, including these Conditions of Sale. Our employees are not authorized to make oral agreements that deviate from the written contractual agreement.
2. Conclusion of Contract/Assignment of Rights and Obligations of the Purchaser
2.1 Our offers are non-binding.
2.2 If the order of the purchaser is to be qualified as an offer, then the purchaser shall be bound hereto for a period of three weeks. The purchase agreement shall come into existence on the basis of our unconditional, written acceptance of the order or by fulfilling the order.
2.3 Assignment of rights and obligations of the purchaser arising out of the contract of sale shall require the prior, written acceptance of this company.
3. Prices and terms of payment
3.1 Our prices shall apply “ex-factory”, provided the order confirmation does not state otherwise.
3.2 Discount deduction shall require a written agreement.
3.3 The purchase price and the prices for supplementary work shall become due 8 days, at the latest, following receipt of the delivery notification - and surrender or transmission of the invoice for payment.
3.4 If partial payments have been agreed upon, the entire remaining amount shall immediately become due and payable if the purchaser defaults with regard to at least two consecutive instalments, either wholly or partially, and the amount is equivalent to 1/10 of the purchase price.
3.5 The purchaser shall only be entitled to offset against our claims if her or his counter-claims are confirmed as legally-binding, uncontested or acknowledged by our company. Moreover, she or he shall be entitled to exercise a right of retention if her or his counter-claim is based on the same contractual relationship.
3.6 If the purchaser is in default, interest shall be charged against the remaining amount at the rate of 5 percentage points above the per annum base interest rate. Claims for compensation for additional damaged caused by delay shall remain unaffected.
3.7 Payment directions, checks or bills of exchange shall be accepted in accordance with special agreement and only on account of payment, taking into account all costs associated with recovery and discount.
3.8 The seller shall be entitled to adjust, at his own discretion, the purchase price that has been indicated to the purchaser in accordance with the actual development of the costs determinative with regard to the calculation of the price. In accordance herewith, the Seller shall be entitled, in particular, in the event of an actual increase in his procurement costs, to raise the purchase price in accordance with her or his own discretion, provided that, from the modified price payable by the Seller, and taking into consideration the development of all other cost items, an increase in total costs results, and the Seller is not responsible for this increase in costs. If the modification in price results in a reduction of the total costs, then the Seller shall be obliged to reduce, at her or his own discretion, the purchase price agreed upon with the Purchaser. Following her or his request therefor, the purchaser must be provided, by the seller, with immediate notification of the price adjustment in text format.
4. Conditions of Delivery
4.1 The moment of inception of our designated delivery period shall be determinative with regard to the clarification of technical issues.
4.2 Compliance with our delivery obligations shall be a further prerequisite to the timely and proper fulfilment of the obligations of the purchaser. Objection on the basis of non-fulfilment of the contract (§ 320 BGB) and the plea of uncertainty (§ 321 BGB) shall be reserved.
4.3 If the purchaser defaults with regard to acceptance or culpably breaches any other obligations to cooperate, we shall be entitled to make a claim for any damages incurred by our company thus far, including any additional expenses. Further claims shall be reserved.
4.4 Our prices shall apply “ex-factory” unless otherwise provided in the order confirmation.
4.5 All force majeure events for which we are not responsible in accordance with § 276 BGB shall release our company from the obligation to fulfil the contractual obligations assumed, provided these events are ongoing. We shall be obliged to provide the purchaser with immediate notification regarding the occurrence and duration of such an event. If an event of this type goes on for longer than three months, each of the parties shall be entitled to withdraw from the contract. The consideration shall be immediately returned.
4.6 Should our company default with regard to delivery on account of slight negligence, then our liability for compensation for damages in addition to specific performance (default damages) shall be limited to 5% of the delivery value, and the compensation for damages in lieu of specific performance to 25% of the delivery value. Further claims of the purchaser - including those asserted following the expiry of the performance term set by our company - shall be excluded. Liability due to culpable personal injury resulting in damage to health or death shall remain unaffected.
5. Withdrawal
5.1 Within legal parameters, the purchaser shall be entitled to withdraw from the contract if it is revealed that our company is responsible for the breach of the obligation; if defects are ascertained (VII), recourse shall be restricted on the basis of the statutory preconditions.
5.2 In the event an obligation is breached, the purchaser shall be required to clarify, in accordance with our request, if she or he is withdrawing from the contract or if she or he intends to insist on delivery.
6. Reservation of Title
6.1 We reserve ownership of the object of purchase until such time as all payments arising on the basis of the business relationship with the purchaser have been received. Provided a current account relationship is in existence between our company and the purchaser, the reservation of title shall refer to the balance acknowledged by our company; the same shall apply in the event a balance is not acknowledged, instead, an “unacknowledged net balance” shall be calculated.
6.2 In the event of a breach by the purchaser, in particular payment default, our company shall be entitled, after establishing a reasonable grace period, to withdraw from the purchase agreement and to demand return of the purchased item; the legal circumstances of the dispensability of setting a deadline, in particular in the event of unreasonableness, shall remain unaffected.
6.3 The purchaser shall be obliged to handle the purchased item with care; in particular, she or he shall be obliged to sufficiently insure the purchased item against fire, water, hail and damage due to theft, and indeed against its reinstatement value. If the purchaser commissions the object of purchase, then the purchaser shall be obliged to obtain comprehensive insurance for the period of retention of title. The purchaser shall be required to provide our company with notification regarding the conclusion of such an insurance policy, upon request. If the purchaser does not comply with this obligation despite receiving a written warning from our company, then we shall be entitled to conclude the insurance policy ourseles at the expense of the purchaser. If this is the case, then the purchaser shall be required to refund our company for the premiums. As far as maintenance and inspection tasks are required, the purchaser shall be obliged to carry out these tasks at her or his own expense.
6.4 For vehicles that have not been moved or used (idle time) for a long period of time (over three months), we urgently recommend to the purchaser that she or he carry out the following measures on a regular basis:
a) annual check of the vehicle’s permeability;
b) Battery maintenance and charging systems on a quarterly basis;
c) Tire check (tire pressure, flat-spotting) on a quarterly basis;
d) Compliance with the storage guidelines established by the manufacturer of the chassis (e.g. Citroen, Fiat), in particular with regard to chassis maintenance and storage support.
A warranty disclaimer requires that the defect be attributable to non-compliance with the abovementioned maintenance obligations. The statutory warranty rights of the purchaser shall otherwise remain unaffected.
6.5 In the event of a pledge or third-party intervention, the purchaser shall be required to provide our company with immediate notification thereof so that we may be permitted to assert our claim in accordance with § 771 ZPO. Insofar as the third party is unable to reimburse CPWave for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the client shall be liable for those costs we have incurred.
6.6 If the reservation of title or the assignment is not effective under the law of the jurisdiction in which the goods are located, then the corresponding security provided for the reservation of title or assignment in this jurisdiction shall be deemed agreed. If the cooperation of the purchaser is required in order for such claims to arise, then he shall be obliged upon our request to take all measures required for the substantiation and safeguarding of such rights.
6.7 At the request of the purchaser, we shall be required to release the securities to which we are entitled when the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of securities to be release shall be up to our company.
7. Quality and Liability for Defects
7.1 Should material defects be ascertained, then the purchaser shall be entitled to avail herself or himself of the statutory warranty claims.
7.2 We assume no liability for damages occasioned due to
- Improper handling of the purchase item by the purchaser or by third parties, in particular where unauthorized tampering and repairs are undertaken,
- The purchase item has not been provided with sufficient replacement, add-ons and parts for accessories, or
- The purchaser has not followed the instructions for handling, maintenance and care of the object of purchase (e.g. operating manual).
Natural wear is excluded by the manufacturer.
7.3 Deviations with regard to weight measurements may attain a maximum of 5%. Special equipment increases tare weight and reduces the vehicle's payload capacity.
7.4 The warranty period for claims based on defects is 2 years, calculated from the time the item is delivered.
7.5 If the purchaser intends to use the object of purchase for a commercial purpose, in particular as a rental vehicle or for other consideration to third parties, then the purchaser shall be required to provide our company with written notification in this regard prior to delivery of the vehicle. The commercial use, in particular as a rental vehicle, involves increased wear and tear on the vehicle. Where commercial use is made, the purchaser shall be obliged to comply with the maintenance intervals provided in the operating manual. A warranty claim presupposes that the defect is to be attributed to the commercial use or to a breach of the maintenance obligation. The statutory warranty rights of the purchaser shall otherwise remain unaffected.
8. Liability
8.1 Our company shall assume liability in accordance with statutory provisions to the extent that the purchaser raises claims for damages based on intentional or grossly negligent conduct, including the intentional or grossly negligent conduct of our representatives or agents, or a culpable breach of an essential contractual obligation.
8.2 As far as ordinary negligence is concerned, our company shall be liable provided if it can be demonstrated that it is responsible for a significant breach of the contract. Essential contractual obligations are obligations, the fulfilment of which are required in order to achieve the contractual purpose, and upon whose fulfilment the purchaser is entitled to place her or his confidence. In this case, liability for compensation of damages shall be limited to those damages of the type that foreseeable occur.
8.3 Liability due to culpable personal injury resulting in damage to health or death shall remain unaffected; this shall also apply with respect to statutory liability under products liability legislation.
8.4 As far as no provision exists to the contrary, additional liability for compensation for damages going beyond Clause 8 - without consideration for the legal nature of the claim brought - shall be excluded. This shall apply, in particular, with respect to damages claims on account of other breaches of obligations or on account of tort claims for compensation for damages in accordance with § 823 BGB. With respect to liability for default, the limitation on liability contained in Clause 4.6 shall additionally apply.
8.5 The provisions under Clause 1 to 3 shall also apply as far as the purchaser requests the refund of useless expenditures rather than compensation for damages.
8.6 As far as liability for compensation for damages is excluded or limited with regard to our company, this shall also apply in consideration of the personal liability for compensation for damages of our appointees, employees, collaborators, representatives and agents.
9. Sanctions and Export Control
9.1 Our company shall be entitled to refuse to perform our services if and to the extent that fulfilling the contract would result in a breach of applicable sanctions provisions, in particular Regulation (EU) No. 833/2014 of the Council, as amended, as well as other sanctions provisions enacted by the European Union, the Federal Republic of Germany or the United Nations.
9.2 A claim for compensation for damages by the purchaser on the basis of a refusal to perform services under paragraph 1 shall be excluded to the extent permitted in accordance with law.
10. Applicable law
The laws of the Federal Republic of Germany shall apply; The UN Convention on Contracts for the International Sale of Goods shall have no application.