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.
1.3 Our Conditions of Sale shall only apply with regard to entrepreneurs within the meaning of § 14 BGB (German Civil Code), public corporations and special assets governed in accordance with public law.
1.4 Our Conditions of Sale apply with respect to all present and future business transactions with the purchaser.
2. Conclusion of Contract/Assignment of Rights and Obligations of the Purchaser
2.1 Our offers are non-binding. Technical modifications, in particular modifications with regard to construction and form, and deviations in the colour tone shall, within reasonable bounds, remain reserved.
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 The statutory value-added tax is not included in our prices; these are shown separately in the amounts applicable on the invoice.
3.3 Discount deduction shall require a written agreement.
3.4 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.
3.5 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 installments, either wholly or partially, and the amount is equivalent to 1/10 of the purchase price.
3.6 The purchaser shall only be entitled to offset or claim rights of retention against our claims if her or his counterclaims are confirmed as legally binding, uncontested, or acknowledged by our company. This limitation shall not apply with regard to claims of the purchaser on account of defects or on account of partial non-fulfillment of the contract, to the extent these claims arise out of the same contractual relationship as our claim.
3.7 If the purchaser is in default, interest shall be charged against the remaining amount at the rate of 9 percentage points above the per annum base interest rate. Claims for compensation for additional damage caused by delay shall remain unaffected.
3.8 Payment directions, checks or bills of exchange shall be accepted in accordance with a special agreement and only on account of payment, taking into account all costs associated with recovery and discount.
3.9 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 fulfillment 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 If the vehicle is not picked up within 8 days following receipt of the delivery notification, then we shall be entitled, following the expiry of this period, to invoice the purchaser for the storage costs up to an amount of EUR 15 per diem. The same shall apply in the event that transfer of the vehicle is delayed due to the fact that the financing for the purchase by means of the financing bank being used is not secured in timely fashion for reasons to be attributable to the purchaser, or the purchaser fails to comply with his obligation to settle outstanding claims, whereupon our company shall be entitled to avail itself of its right of retention.
4.5 Our prices shall apply “ex-factory” unless otherwise provided in the order confirmation.
4.6 All force majeure events for which we are not responsible in accordance with § 276 BGB shall release our company from the obligation to fulfill 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.
4.7 Should our company default on account of negligence, then our liability for compensation of 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 ourselves 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 Where vehicles have not been used or moved for a period of more than three months (service life), the purchaser shall be obliged to carry out the following equipment preservation measures on a regular basis and to provide proof of their execution upon request:
a) Conducting a check of the vehicle's permeability at least once annually;
b) Maintenance and battery lifecycle management of the vehicle battery or batteries every three months;
c) Checking the tires for flat spots and verifying the recommended tire pressure every three months;
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.
Non-compliance with these obligations regarding idle storage maintenance shall result in the exclusion of warranty claims on account of defects attributable to defective idle storage maintenance, in accordance with the provisions of clause 7 of these conditions.
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 The purchaser shall be entitled to the resale of the purchase item within the ordinary course of business; however, she or he shall hereby assign, with immediate effect, all claims in the amount of the final amount of the invoice (including sales tax) corresponding to our claim, which arise from the resale to its customers or to third parties, irrespective of whether the purchase item was or was not resold following processing. The purchaser shall be entitled to undertake collection measures with regard to this claim, even following the assignment. Our authorization with regard to collecting the claim shall remain unaffected hereby. Nevertheless, we shall be obliged to refrain from collecting on the claim as long as the purchaser complies with her or his payment obligations out of the proceeds collected, is not in default, and, in particular, no insolvency proceedings have been commenced and no stop payment order has been issued. If this is the case, we shall be entitled to request that the purchaser disclose the assigned claims as well as the debtor thereof, provide all information required for collection, submit the appurtenant documents, and provide the debtor (third party) with notification of the assignment.
6.7 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.
6.8 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 released shall be up to our company.
7. Quality and Liability for Defects
7.1 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.
7.2 Claims for defects shall exist where insignificant deviations from the agreed quality are ascertained, or where use is impaired in an insignificant fashion.
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 purchaser's rights with regard to defects under § 377 HGB have, as a prerequisite, that the purchaser comply with her or his obligations regarding inspection and defect notification. Notification of defects shall be provided in writing. The purchaser shall bear the burden of proof with regard to all prerequisites for claims, in particular for the defect itself, for the point in time at which the defect occurred and for the timeliness with which notification of the defect was made.
7.5 If a defect is ascertained, our company shall reserve the right to make an election with regard to the type of supplementary performance.
7.6 The warranty period for claims based on defects is 12 months, calculated from the time the item is delivered. At variance herewith is the statutory warranty period of two years for damage claims on the basis of intentional or grossly negligent breaches of duty, as well as in the situations described in Clause 9.2.
7.7 The limitation rules in the event of delivery recourse § 445b BGB remains unaffected. Indemnity claims against our company under §§ 478, 445a BGB (business operator’s right of recourse) shall only exist insofar as the purchaser has not concluded an agreement with his customer that goes beyond the statutory defect claims The purchaser shall only carry out claims for subsequent performance of his customers where these are justified and only following prior coordination with our company and in agreement therewith; the purchaser shall be obliged to inform our company in advance of the foreseeable costs of subsequent performance. If the purchaser executes specific performance of its own accord and without our prior written consent, then the purchaser does so at her or his own risk.
7.8 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 the 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. Return of spare parts, accessories, tools and consumer articles
8.1 Upon delivery, spare parts, accessories, tools, and consumer articles are to be inspected by the purchaser immediately for any non-conforming delivery, defects, and quantity variances.
8.2 The purchaser shall be entitled to return items that have been delivered in error within a period of 30 days following delivery. While doing so, the purchaser shall be obliged to use care to ensure that the goods are properly packed for return shipping. The return shipment shall be at the cost and risk of the purchaser. The return shipment shall constitute withdrawal from the contract. Manufactured parts are excluded from the return shipment.
8.3 For return shipments of spare parts that cannot be attributed to any fault on the part of our company, we charge a restocking fee in the amount of 10% of the goods’ net value, or a minimum of EUR 15.00.
8.4 In the event delivery of one of the items under Clause 8.1 is carried out in error by our company, the purchaser shall be entitled to avail herself or himself of the statutory warranty claims in accordance with the provisions under Clause 7 and Clause 9 of these conditions of sale. Should the purchaser request replacement goods, then the return shipment of the incorrectly delivered items must be made within 30 days following delivery, unless the purchaser proves that the delivery made in error would not have been detected upon an ordinary inspection of the goods on arrival.
8.5 Return shipments made after the 30-day period shall only be permitted in accordance with prior, written consent issued by the management team of our spare parts’ warehouse.
9. Liability
9.1 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. Essential contractual obligations are obligations, the fulfillment of which is required in order to achieve the contractual purpose, and upon whose fulfillment the purchaser is entitled to place her or his confidence. Provided our company has not committed an intentional breach of the contract, the liability for damages in the above-mentioned cases shall be limited to those foreseeable damages that typically occur under the circumstances.
9.2 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.
9.3 As far as no provision exists to the contrary, additional liability for compensation for damages going beyond Clause 9 - 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 4.7 shall additionally apply.
9.4 The provisions under Clauses 9.1 to 9.3 shall also apply as far as the purchaser requests the refund of useless expenditures rather than compensation for damages.
9.5 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.
10. Sanctions and Export Control
10.1 The purchaser shall be obliged to refrain from reselling, transporting, or otherwise making the vehicles and products available in countries or states to other persons or companies, to the extent this infringes upon applicable sanctions provisions, in particular Regulation (EU) No. 833/2014 of the Council in its current applicable version as well as other sanctions provisions decreed by the European Union, the Federal Republic of Germany or the United Nations.
10.2 The purchaser shall provide our company with details regarding the ultimate destination or the purchased item.
10.3 Our company shall be entitled to refuse to perform our service if and to the extent that fulfilling the contract would result in the breach of applicable sanctions provisions. In this case, a claim by the purchaser for compensation for damages is excluded, unless our company is responsible for infringing the sanctions provisions.
10.4 The purchaser shall be liable for claims, damages, and costs arising on account of a breach by the purchaser of the above-mentioned obligations, including fines and other official sanctions, if the purchaser is responsible for the breach. Liability shall be limited to intentional acts and acts committed with gross negligence. Apart from this, the statutory provisions shall apply.
11. Jurisdiction – Place where contract to be performed – Applicable law
11.1 If the purchaser is a merchant, then the administrative division in which our company’s headquarters are located shall have exclusive jurisdiction; nevertheless, our company shall be entitled to bring a claim against the purchaser in the jurisdiction in which the purchaser's headquarters are located.
11.2 If the purchaser is a merchant, unless the order confirmation states otherwise, the administrative division in which our company headquarters are located shall be the place of fulfillment for all obligations arising out of the contract, including the payment obligation of the purchaser.
11.3 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.