GENERAL TERMS AND CONDITIONS FOR THE SALE, DELIVERY AND PAYMENT - Used
MTS Mobile Tiefbau Saugsysteme GmbH
Version dated 19 May 2026
§ 1 Scope of Application, Exclusion Clause
Our following General Terms and Conditions for Sale, Delivery and Payment for Used Equipment (“GTC-Used”) apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. They shall also apply to all future transactions with these contractual partners.
These General Terms and Conditions apply to all contracts concerning the sale of used mobile excavation vacuum systems as well as other used vehicles and equipment by the seller.
Unless individual arrangements have been agreed for the specific transaction, our General Terms and Conditions for Sale, Delivery and Payment shall apply exclusively. We do not recognize any conflicting or deviating general or individual terms and conditions of the contractual partner unless our authorized representatives have expressly agreed to their validity in writing. Our contractual partner must verify the validity of the representative authority, for example by consulting the commercial register. Our General Terms and Conditions shall also apply if we perform deliveries or services without reservation despite being aware of conflicting or deviating terms and conditions of the contractual partner.
The German version shall prevail for the interpretation of our General Terms and Conditions even if a foreign-language version has been provided to our contractual partner.
§ 2 Offers, Conclusion of Contract, Offer Documents
Our offers are subject to change unless we expressly specify a period for acceptance.
Our contractual partner shall be bound by its orders for 21 days, meaning that we may accept the order with binding effect for our contractual partner within 21 days after receipt. If our contractual partner specifies a longer acceptance period, such longer period shall apply. A contract shall be concluded when we declare acceptance by means of a written order confirmation or perform the ordered delivery or service. Mere silence in response to an offer from our contractual partner shall not constitute acceptance.
The content of the contract shall be governed by our written order confirmation. If, exceptionally, no such confirmation exists, our written offer shall govern the content of the contract, provided it has been accepted by the contractual partner in writing without reservations. Any subsequent additions or amendments requested by our contractual partner shall only become part of the contract if expressly confirmed in writing by our authorized representatives. This applies in particular to the delivery of additional parts and the provision of additional services.
We reserve ownership and copyright rights to cost estimates, illustrations, calculations, samples and other objects and documents. Without our express consent, they may neither be reproduced nor made accessible to third parties. This also applies to written documents designated as “confidential”.
§ 3 Prices, Price Adjustments
Deliveries and services for which fixed prices have not been expressly agreed shall be charged at the prices valid on the date of delivery or performance.
Unless otherwise stated in the order confirmation, our prices are net prices “ex works” (EXW – Incoterms 2020), excluding postage, packaging, insurance, customs duties and transport costs. Statutory VAT is not included in our prices; it shall be shown separately and charged in the invoice at the rate applicable on the invoice date, provided the delivery or service is subject to VAT.
§ 4 Payments, Terms of Payment, Financing Confirmation, Set-Off, Retention, Our Rights in Case of Risk to Payment Claims
Unless otherwise agreed in the contract, in transactions concerning used vehicles, 20% of the net order value shall be due as a down payment within 10 working days after conclusion of the contract pursuant to § 2 no. 3. We shall be entitled to withdraw from the contract if the down payment is not made and we have unsuccessfully granted an additional reasonable grace period, generally 10 calendar days, or if granting such grace period is dispensable pursuant to Section 323 (2) BGB. The down payment shall not bear interest.
The remaining 80% of the net order value shall become due upon notification of readiness for delivery.
Other services shall be payable within ten working days (excluding Saturdays) after performance, whereby receipt of payment by us shall be decisive.
If the provision of financing confirmation has been agreed and such confirmation is not provided when due, we shall be entitled to withdraw from the contract if we have either unsuccessfully granted an additional reasonable grace period or if such grace period is dispensable pursuant to Section 323 (2) BGB.
Cash discounts are excluded.
We are entitled to charge our contractual partner interest amounting to five percent of the outstanding invoice amount from the due date onward, even if the partner is not in default.
The legal consequences of default in payment by our contractual partner shall be governed by statutory provisions of the German Civil Code. In particular, we may claim default interest pursuant to Section 288 BGB – currently nine percentage points above the applicable base interest rate – on the outstanding invoice amount. Furthermore, we shall be entitled to withhold performance under contracts not yet fulfilled and, after unsuccessful expiration of a grace period, declare all other non-time-barred claims against our contractual partner immediately due and payable.
Our contractual partner may only offset its own claims against claims due to us if its claim has been legally established or acknowledged by us. A right of retention pursuant to Section 273 BGB shall only exist insofar as the counterclaim is based on the same contractual relationship.
We expressly reserve the right to reject checks or bills of exchange as means of payment.
If we have agreed with our contractual partner that a documentary letter of credit must be opened with its bank or another bank accepted by us, the letter of credit must comply with the applicable Uniform Customs and Practice for Documentary Credits. The letter of credit must be irrevocable and divisible.
The basis of our conclusion of contract is the financial capability of our contractual partner. If, between conclusion of contract and delivery, we become aware of circumstances justifying the assumption that the contractual partner will not meet its payment obligations (such as application for or opening of insolvency proceedings, over-indebtedness, inability to pay, suspension of payments or unsuccessful enforcement measures), we may withhold our performance and request advance payment of the full purchase price or provision of adequate security before delivery or performance. If the contractual partner fails to comply within a reasonable period, we shall be entitled to withdraw from the contract. Further rights remain expressly reserved.
We reserve the right to assign our claims against customers and other contractual partners to third parties.
Our contractual partner shall bear all fees, costs and expenses incurred in connection with any successful legal enforcement against it outside Germany.
§ 5 Delivery Time, Delay in Delivery, Impossibility of Delivery
Our information regarding delivery dates and delivery periods is based on our planning at the time of conclusion of the contract and is not legally binding unless we expressly confirm a fixed delivery period or fixed delivery date to our contractual partner in writing (e.g. designated as “assured”, “guaranteed” or “binding”).
The following shall apply to bindingly agreed delivery periods:
Unless otherwise agreed, the delivery period shall commence on the date of conclusion of the contract.
Unless expressly agreed otherwise, delivery periods or dates shall be deemed complied with if we hand over the delivery item to the carrier on the relevant date or upon expiry of the relevant period, or if we can prove that we notified readiness for dispatch of the delivery item in due time for the relevant date.
Delivery periods shall be extended by periods during which our contractual partner fails to perform required cooperation obligations in due time (e.g. provision of materials, clarification of technical and/or commercial questions) and/or fails to fulfill obligations incumbent upon it in due time (e.g. payment of an agreed down payment, provision of required permits, approvals and/or documents). Our right to withdraw from the contract under the conditions set forth in Clause 3 remains reserved.
In the event of force majeure or unforeseen obstacles which we cannot avert despite exercising reasonable care according to the circumstances of the individual case, the delivery period shall be extended until the obstacle ceases to exist and by an appropriate restart period. The following circumstances, by way of example, shall lead to such extension of the delivery period if we are not responsible for them and if they hinder timely production or delivery in the specific case: governmental interventions in Germany or abroad, energy failures, natural events (storm, hail, water, fire, etc.), effects of war or a global pandemic, strikes, lawful lockouts, operational disruptions or restrictions, including at suppliers’ facilities. We shall not be responsible for fault on the part of our upstream suppliers.
We shall notify our contractual partner without undue delay of the occurrence of force majeure or an unforeseen obstacle and, where possible, the expected duration of the resulting hindrance to performance.
In the event of a delivery delay exceeding eight months, our contractual partner shall be entitled to withdraw from the contract if the contractual partner is not responsible for the delay, waiting until the expected cessation of the obstacle would jeopardize the purpose of the transaction and cannot reasonably be expected, and if the contractual partner has previously granted us a reasonable grace period in writing together with a notice of refusal.
If our contractual partner fails to fulfill a material obligation incumbent upon it under the contract when due (e.g. provision of required permits, approvals and/or documents), we shall be entitled to withdraw from the contract if we have either unsuccessfully granted a further reasonable grace period or if such grace period is dispensable pursuant to Section 323 (2) BGB. In this case, we shall be entitled to claims for damages and compensation for use under the statutory conditions.
If our performance becomes permanently impossible or substantially more difficult due to force majeure or unforeseen events of the aforementioned type, we shall be released from our obligation to perform. In such cases, our contractual partner shall have the right to withdraw from the contract under the statutory conditions.
Any claim by our contractual partner for damages due to breach of contract resulting from delayed delivery or complete or partial non-delivery shall require fault on our part. The statutory provisions regarding the burden of presentation and proof shall apply. We do not recognize lump-sum damage claims asserted by our contractual partner. Our liability for damages shall be limited in accordance with § 10.
§ 6 Our Rights in the Event of Non-Acceptance or Delayed Acceptance
Acceptance shall take place at our production site in Germersheim unless shipment or another arrangement has been agreed with our contractual partner.
If our contractual partner fails to accept the delivery item on the contractually agreed delivery date for reasons attributable to the contractual partner, we shall be entitled to demand lump-sum compensation for consequential costs associated with the non-acceptance (e.g. storage, transport and/or financing costs). The lump-sum compensation shall amount to 0.5% of the gross contract value for each commenced week of non-acceptance until acceptance, but not more than 5% of the gross contract value plus VAT. We may claim compensation for any additional damage if we prove that actual damage exceeding the lump sum has occurred. Any lump-sum compensation already paid shall be credited accordingly. Our contractual partner shall be entitled to prove that no damage occurred or that the damage is substantially lower than the lump sum.
In the event of non-acceptance, we shall furthermore be entitled to grant our contractual partner a reasonable period for acceptance. Upon unsuccessful expiry of such period, we shall be entitled to withdraw from the contract. If we have withdrawn from the contract and the non-acceptance is attributable to fault on the part of our contractual partner, we shall be entitled to demand 20% of the net contract value as lump-sum damages. Our contractual partner shall be entitled to prove that no damage occurred or that the damage is substantially lower than the lump sum. We may prove that actual damage exceeding the lump sum has occurred, particularly with regard to depreciation of the delivery item. Our claim pursuant to § 6 sentence 2 shall remain unaffected; however, in place of acceptance by our contractual partner, delivery of the delivery item within the framework of alternative utilization by us shall apply.
§ 7 Transfer of Risk, Shipment, Transport Insurance
If our contractual partner fails to accept the delivery item on the agreed delivery date without fault on our part, the risk of accidental loss and accidental deterioration of the delivery item shall pass to our contractual partner upon receipt of the notification of readiness for dispatch or the request to collect the goods.
If we arrange shipment of the goods, our contractual partner shall bear the transport costs. In particular, our contractual partner shall bear all export-related costs (e.g. duties, fees, customs duties, taxes). The risk of accidental loss and accidental deterioration of the delivery item shall pass to our contractual partner at the moment we hand over the delivery item to the person commissioned with transport.
We shall not be obliged to take out transport insurance. Such insurance shall only be taken out upon written request by our contractual partner. The costs of transport insurance shall be borne by our contractual partner.
If, on behalf of our contractual partner, we procure license plates for the transfer of a vacuum excavator, we shall not, without an express written order from our contractual partner, be obliged to arrange insurance covering damage to the vehicle itself. The costs of such insurance shall be borne by our contractual partner. Without express instruction, our contractual partner shall bear sole responsibility for ensuring adequate insurance coverage.
§ 8 Retention of Title to Secure Our Payment Claims
The goods delivered by us shall remain our property until full payment of all claims arising from the business relationship, including claims arising after conclusion of the contract. Payment shall be deemed made upon receipt of the invoice amount in one of our bank accounts. In the event of conduct by our contractual partner in breach of contract, in particular default in payment, we shall be entitled to repossess the goods without this constituting withdrawal from the contract in itself. However, withdrawal from the contract and all further statutory rights remain reserved.
Our contractual partner shall store the goods subject to retention of title free of charge on our behalf. The contractual partner shall be obliged to handle the goods with care and insure them adequately at its own expense against loss and damage caused by fire, theft, vandalism and natural events. Upon request, proof of insurance shall be provided to us. Insurance claims relating to our deliveries subject to retention of title shall be assigned to us upon conclusion of the insurance contract in the amount of the claims invoiced to our contractual partner.
Our contractual partner shall not be entitled to use the goods subject to retention of title as security for loans, in particular to pledge them or transfer ownership by way of security to third parties. The contractual partner shall notify us immediately in writing of any seizure or other access by third parties to the goods subject to retention of title. Insofar as the third party fails to reimburse us for the judicial and extrajudicial costs of enforcing release of the goods, our contractual partner shall be liable for such costs.
As long as the goods subject to retention of title have not been fully paid for, our contractual partner shall only be entitled, with our consent, to resell and process them in the ordinary course of business. The following restrictions shall continue to apply in order to protect our ownership of the goods subject to retention of title and the retention of title itself:
a) Insofar as our contractual partner resells the goods subject to retention of title, the contractual partner hereby assigns to us all claims arising against third parties in connection with the resale up to the amount of our final invoice total and ancillary claims, regardless of whether the goods subject to retention of title are resold with or without processing. We revocably authorize our contractual partner to collect the assigned claims even after assignment. We shall not exercise our own right to collect the claims and shall not revoke the collection authorization as long as our contractual partner meets its payment obligations towards us, is not in default and, in particular, no application for insolvency proceedings has been filed and no suspension of payments exists. If any of these circumstances occurs, our contractual partner shall be obliged to disclose the assigned claims and their debtors to us, provide all information necessary for collection, hand over the related documents and notify the debtors of the assignment. The assignment shall be subject to resolutory condition upon settlement of our claims. Our contractual partner shall not be entitled to resell the goods subject to retention of title insofar as its buyers have excluded or restricted assignment of the claims against them.
b) Any processing or transformation of the goods subject to retention of title shall always be carried out for us as manufacturer so that we immediately acquire ownership of the processed or transformed item. If the purchased item is processed or transformed together with items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title compared to the other processed or transformed items at the time of processing or transformation. If the purchased item is inseparably combined, mixed or blended with items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title (final invoice amount incl. VAT) compared to the other items at the time of combination, mixing or blending. If our contractual partner acquires sole ownership through combination, mixing or blending, it is already agreed upon conclusion of the contract that co-ownership of the unified item shall be transferred to us in the ratio described above. Our contractual partner shall hold such sole ownership or co-ownership in safekeeping for us free of charge.
c) We undertake to release securities to which we are entitled at the request of our contractual partner insofar as their realizable value exceeds the secured claims by more than 25%. We shall decide which securities are to be released.
Insofar as our retention of title is not legally effective under the law of the country to which the goods are delivered, we may require our contractual partner to provide equivalent security and maintain it until final payment. If our contractual partner fails to comply with this request, we shall be entitled to demand immediate payment of all outstanding claims irrespective of any agreed payment term or deferral.
Insofar as we are recipients of goods, we object to the applicability of any retention of title clause stipulated by our supplier in its favor.
§ 9 Product Characteristics, Warranty, Notice of Defects, Limitation Period for Warranty Claims
The contractual requirements for our product shall arise exclusively from the written contract in accordance with § 1 para. 3 of our GTC. A specific characteristic of our product shall only be deemed warranted or guaranteed if expressly designated as such in the contract. This applies in particular to information regarding mileage, the condition of the used vehicle and its period of use.
Technical information or illustrations relating to our product on the internet, in advertisements, brochures, offer documents and operating manuals are for descriptive and informational purposes only and shall constitute a contractually agreed product requirement only if expressly designated as binding at the place of publication or in the written contract pursuant to § 1 para. 3 of the GTC.
Unless otherwise agreed, used goods shall be sold in the condition they are in at the time of handover to our contractual partner. The contractual condition of used goods shall in particular include typical wear and tear and signs of use. The buyer is also aware that the goods may have high mileage and a high number of operating hours. Warranty claims for defects in the purchased goods are excluded.
The exclusion of warranty shall not apply insofar as we have fraudulently concealed the defect in question or guaranteed the absence of such defect.
§ 10 Contractual Warranty for Used Vehicles
We voluntarily grant a contractual warranty for used vehicles covering essential technical main components to the following extent:
The used vehicle warranty shall apply exclusively to defects reported to us in writing within six months after handover of the purchased item.
The used vehicle warranty shall not apply to damage:
- resulting from normal wear and tear or operational wear, in particular to suction hoses, suction pipes, turbines, filter systems, containers, hydraulic components, compressors and chassis components
- caused by overload or improper operation
- resulting from omitted or insufficient maintenance or improper repair work
- Electrical and electronic components are excluded from the used vehicle warranty.
- In the event of a warranty claim, we shall, at our discretion, either repair the defect or supply suitable replacement parts.
- Any further claims not expressly stated herein, such as claims for damages or compensation for downtime, etc., are not covered by the used vehicle warranty.
§ 11 Liability for Damages
- We shall only be liable for claims for damages asserted against us, in particular claims for direct damages (including loss of profit), indirect damages (financial losses) and consequential damages, regardless of the legal basis of such claims (impossibility, delay, non-performance, culpa in contrahendo, positive breach of contract or tort), in the following cases:
- intentional misconduct
- gross negligence by our legal representatives or executive employees
- culpable injury to life, body or health
- defects fraudulently concealed by us or where we have assumed a guarantee for the quality of the item
defects in the delivery item insofar as liability exists under the German Product Liability Act for personal injury and property damage to privately used items
In the event of culpable breach of essential contractual obligations arising from the nature of the contract and the fulfillment of which is essential for achieving the purpose of the contract (cardinal obligations), we shall also be liable for gross negligence by non-executive employees as well as for slight negligence, in the latter case limited to the typical and reasonably foreseeable contractual damage.
Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our vicarious agents.
§ 12 Written Form Requirement
Where declarations are required to be made in writing under these Terms and Conditions, transmission by fax, telegram or e-mail shall also satisfy the written form requirement.
§ 13 Place of Performance, Jurisdiction, Applicable Law
- The place of performance for all obligations and services arising from the contractual relationship shall be our registered office (Germersheim).
- The place of jurisdiction for all disputes of any kind, including documentary and cheque proceedings, shall be our registered office (Germersheim). However, we reserve the right to bring legal action against our contractual partner before the courts that would have jurisdiction absent such jurisdiction agreement.
- The legal relationship with our contractual partner shall be governed exclusively by the substantive laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and excluding German conflict-of-law rules.
