General Terms of Sale, Payment and Delivery
MTS Mobile Tiefbau Saugsysteme GmbH
Date: March 2015
§ 1 Area of application, defence clause
1. Our General Terms of Sale, Payment and Delivery (SPD) set out below apply in contracts with entrepreneurs within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), legal persons under public law and special funds under public law. They also apply to all future transactions with these parties.
2. Our General Terms of Sale, Payment and Delivery apply to all our deliveries and services.
3. Where no individual provisions have been made with regard to the specific transaction, our General Terms of Sale, Payment and Delivery shall apply exclusively. We do not recognize conflicting or deviating conditions of the customer unless we have expressly agreed to their application in writing. Our General Terms of Sale, Payment and Delivery shall also apply if we effect performance unconditionally in the knowledge of conflicting or deviating conditions of the customer.
4. Interpretation of our General Terms of Sale, Payment and Delivery shall be based on the German version even if the customer has been provided with a foreign-language version.
§ 2 Offer, entry into a contract, offer documents
1. Our offers are non-binding, unless we set a time limit for acceptance.
2. The customer shall be bound by its orders for 21 days, that is, we shall be entitled for a period of 21 days after we have received an order to accept it with binding effect on the customer. If the customer has specified a longer period of time for acceptance, this longer period shall apply.
3. The contents of the contract shall be based on our written confirmation of order, or on our written offer if this is accepted in writing by the customer without reservation.
If the customer later requests additions or amendments, these shall only become terms of the contract if they are expressly confirmed by us in writing. This applies in particular to the delivery of further parts and the supply of further services. Our employees shall not be authorized to make binding oral collateral agreements.
4. We reserve property rights and copyright in estimates, images, calculations, samples and other items and documentation. They may not be reproduced or made available to third parties without our express consent. The same applies to written documentation that is described as confidential.
§ 3 Prices, price changes
1. Deliveries and services for which fixed prices have not expressly been agreed shall be charged at our prices in effect on the date of the delivery or service.
2. Unless otherwise indicated by the confirmation of order, our prices shall be “ex works” (Incoterms 2000), excluding packaging. Our prices do not include statutory value-added tax; this is stated and charged separately in the invoice at the rate applicable on the invoice date, if the delivery or service is subject to value-added tax.
3. If, after we have made our offer or after the contract has been entered into, there are substantial changes in the costs of acquisition and we are not responsible for these changes (e.g. increase of material and delivery costs, customs duties, exchange rate fluctuations), we shall be entitled to demand a reasonable adjustment of price if we notify the customer of this in good time before the delivery or service.
§ 4 Payments, terms of payment, set-off, retention, our rights if our payment claims are endangered
1. Unless otherwise indicated in the confirmation of order, the agreed price shall be payable within ten working days (excluding Saturdays) after delivery or performance. The relevant date for determining whether payment is in time is the date when the payment is received by us.
For orders with a value of over € 20,000.00 we shall be entitled to a payment on account of one-third of the invoice total (including value-added tax), which shall become payable on the date when the contract is entered into (date of receipt of confirmation of order/unconditional acceptance of our offer).
2. No discount in payment may be made without prior agreement in writing.
3. From the due date on, we shall be entitled to claim interest from the customer, even if it is not in default, at the rate of five per cent of the outstanding invoice amount.
If the statutory requirements for default are satisfied, we shall be entitled to claim interest on late payment on the outstanding invoice amount at the rate of eight percentage points above the current base rate under section 247 BGB.
The customer shall be in default as follows:
If a period of time for payment has been agreed:
– from the day following the end of the period (e.g. period for payment in the MTS confirmation of order/the MTS offer or time for payment under our SPD § 4 no. 1).
– either receives a payment demand (default begins on the date of receipt of the payment demand)
– or has received an invoice and 30 days have passed (without a payment demand).
Without prejudice to other statutory grounds of default, default shall occur immediately
– if the customer seriously and finally refuses to effect performance which is due (without a payment demand).
The legal consequences of late acceptance or failure to accept the delivery item are governed by § 6 of our SPD.
4. The customer may only set off a claim of its own against a claim of ours if its claim has been finally and non-appealably established or we do not dispute it. The customer shall have a right of retention under section 273 BGB only where its counterclaim is based on the same contractual relationship.
5. We expressly reserve the right to refuse cheques or bills of exchange as means of payment. If we accept a cheque as means of payment, our claim against the customer shall be deemed satisfied only when and only insofar as the amount of the claim has been credited to our account finally and free of redebit (acceptance as conditional payment). Cheque cashing fees and/or exchange rate charges shall be borne by the customer.
6. If we have agreed with the customer that the customer’s bank or another bank acceptable to us is to open a documentary credit, the documentary credit shall be opened in compliance with the applicable Uniform Customs and Practice for Documentary Credits (currently 1993 Revision, ICC Publication No. 500). The documentary credit shall be irrevocable and divisible.
7. The basis of our entering into a contract is the creditworthiness of the customer. If we learn of circumstances that entitle us to assume that the customer cannot comply with the payment obligations agreed (e.g. filing a petition for or commencement of insolvency proceedings, overindebtedness, insolvency, cessation of payments, unsuccessful attempt of compulsory execution), we shall be entitled to request the customer to pay the purchase price in full before delivery or performance or to provide valuable security. If the customer does not comply with this within a reasonable period of time, we shall be entitled to withdraw from the contract. We expressly reserve further rights.
§ 5 Delivery time, default in delivery, impossibility of delivery
1. An agreed delivery period shall begin, unless otherwise agreed, on the date when the contract is entered into. However, the commencement of all delivery periods and times is subject to the condition that all previous commercial and technical questions have been clarified and the customer has fulfilled all its contractual duties in good time and correctly, for example made an agreed payment on account or provided necessary authorizations, releases and/or documentation.
2.a) Information on delivery times is only approximate unless a fixed date or a fixed period has been expressly agreed.
b) Delivery periods or dates are complied with if we transfer the delivery item on the applicable date or at the end of the applicable period to the person instructed to provide transport or if we show proof that we gave notice in good time that the delivery item was ready for dispatch on the applicable day.
c) The delivery periods shall be extended by an appropriate time even without express agreement if there are subsequent amendments to the contract which affect the delivery times.
d) In the case of force majeure or if unforeseeable obstacles arise and we cannot avert these despite taking the care appropriate in the circumstances of the individual case, the delivery periods shall be extended by the period of interruption and a reasonable restart period. The following circumstances, given as examples, shall result in the above extension of the delivery period if we are not responsible for them and in the specific case they prevent production or delivery in good time: interventions of public authorities at home and abroad, incorrect delivery or delivery out of time of carrier vehicles, essential raw materials or construction materials, other materials or commodities, power failure, natural events (including storm, hail, water, fire), strikes, lawful lockouts, stoppages or restrictions of operations, including those at suppliers. We shall not be responsible for fault on the part of our suppliers.
e) We shall be obliged to notify the customer of when force majeure or an unforeseeable obstacle has occurred and, as soon as this can be foreseen, the probable duration of the inability to perform.
f) The customer shall be entitled to withdraw from the contract on account of the above temporary inability to perform only if waiting until the expected cessation of the obstacle jeopardizes the business purpose and the customer cannot reasonably be expected to accept this, and if the customer has first granted us a reasonable additional period of time in writing with a warning of withdrawal. The withdrawal must be declared in writing.
g) If our performance is permanently made considerably more difficult as a result of force majeure or unforeseen events of the above nature, we shall be released from our duty to deliver.
In this case, our customer shall be entitled to withdraw from the contract if it has first granted us a reasonable additional period of time in writing with a warning of withdrawal. More extensive claims of our customer, in particular claims for damages resulting from non-performance or defective performance, are excluded, unless proof can be given of intention or gross negligence on the part of ourselves or our executive personnel.
3. If we owe damages to our customer for default in delivery, our customer shall set out and give proof in detail of its loss incurred as a result of the default; we do not recognize lump-sum claims.
The amount of our duty to pay damages for default in delivery is restricted to 0.5% for every week or part of a week of delay, but in total to a maximum of 5% of the value of the delivery which as a result of the delay cannot be used in good time or cannot be used in accordance with contract.
4. If it becomes impossible for us to comply with our duty of delivery, for example because the delivery item is destroyed or misappropriated before delivery to the carrier or before notice of readiness for dispatch, we shall be released from our duty to deliver. If the impossibility of delivery is our fault, our liability in damages shall be restricted as set out in § 10.
§ 6 Our rights in the case of non-acceptance or late acceptance
1. If the customer does not accept the delivery item on the contractual delivery date, without any fault on our part, the contractual price (including value-added tax) relating to the delivery shall be payable at the time of receipt of our notice of readiness for dispatch or our request to collect the goods; at the same time, the risk shall pass to the customer (§ 7 no. 2).
If the non-acceptance results from the customer’s fault, we shall be entitled to claim lump-sum damages for the consequential costs of the non-acceptance. This shall be 1% of the net contract amount for each week or part of a week of non-acceptance (among other things, for warehouse costs, financing costs) until acceptance or until dissolution of the contract. Our customer shall be entitled to show proof that we incurred no damage or damage in an amount less than the lump sum. In turn, we shall be entitled to show proof that we did in fact suffer damage greater than the lump sum amount.
2. In the case of non-acceptance, we shall also be entitled to set a reasonable time limit for our customer for acceptance. If the time limit expires without result, we shall be entitled to withdraw from the contract.
If we have withdrawn from the contract and if the non-acceptance arises from the fault of our customer, we shall be entitled to claim as damages 35% of the net contract amount for the purchase of a new suction excavator or 20% of the net contract amount for the purchase of a used suction excavator. The customer shall be entitled to show proof that we incurred no damage or damage in an amount less than the lump sum. In turn, we shall be entitled to show proof that we did in fact suffer damage greater than the lump sum amount.
§ 7 Passing of risk, shipping, transport insurance
1. If we are responsible for shipping the goods, our customer shall bear the costs of transport. In particular, our customer shall bear all costs connected with export (e.g. charges, fees, customs duties, taxes).
2. The risk shall pass to the customer at the time when we transfer the delivery item to the person instructed with the transport; the customer shall then bear, for example, the risk of destruction, damage or theft of the delivery item.
If delivery is not made in the contractual delivery time, without any fault on our part, the risk shall pass to the customer on receipt of notice of readiness for dispatch or of our request to collect the goods.
3. At the customer’s request, we will take out a transport insurance policy to cover deliveries. The customer shall bear the costs of this. With this exception, we shall not be obliged to take out a transport insurance policy.
4. If, on behalf of the customer, we obtain number plates to transport a suction excavator, then in this connection we shall not be obliged without express instructions from the customer in writing to take out an insurance policy for own damage to the vehicle. In this case, the customer shall bear the sole responsibility for the existence of insurance protection.
§ 8 Retention of title to protect our payment claims
1. The goods delivered by us shall remain our property until all claims, including claims which arise after the contract is entered into, have been paid in full. Payment means the receipt of the invoice total in one of our accounts. If the customer acts in breach of contract, in particular if the customer defaults in payment, we shall be entitled to take back the goods; this does not in itself constitute withdrawal from the contract. However, we reserve the right to withdraw from the contract and all more extensive statutory rights.
2. The customer shall keep the title-retention goods in safe custody for us free of charge. It shall ensure that they are treated with care and shall insure them adequately at its own cost against loss and damage by fire, theft, vandalism and natural events. On request, the customer shall give us proof of insurance. Insurance claims in connection with our deliveries subject to retention of title shall be assigned to us on the date when the insurance policy is taken out in the amount of the claims invoiced to the customer.
3. The customer shall not be entitled to use the title-retention goods as security for a loan, in particular not to pledge them or to transfer ownership of them to third parties as security. The customer shall without undue delay notify us in writing of pledging by third parties or other access by third parties to the title-retention goods. If the third party does not reimburse our in-court and out-of-court costs of obtaining a release of security, the customer shall be liable for this.
4. As long as the title-retention goods have not been paid for in full, the customer shall be entitled only with our consent to dispose of and process them in the regular course of business.
To safeguard our ownership of the title-retention goods and the retention of title, the following restrictions shall also apply:
a) If the customer resells the title-retention goods, it hereby and now assigns to us all claims against third parties incurred by it in connection with the resale, in the amount of our final invoice and our incidental claims, irrespective of whether the title-retention goods were resold processed or unprocessed.
We revocably authorize the customer to collect the claims even after the assignment. We will not exercise our own right to collect the claims and we will not revoke the customer’s authorization to collect provided it satisfies its payment duties to us, is not in default, and in particular there has been no petition for the commencement of insolvency proceedings with regard to its assets and no cessation of payments. If one of these circumstances applies, the customer shall notify us of the claims assigned and their debtors and shall give us all further information necessary for collection, surrender to us the relevant documentation and inform its debtors of the assignment. The assignment is subject to a dissolving condition that our claims are satisfied.
The customer shall not be entitled to resell the title-retention goods if its purchasers have excluded or restricted the assignment of claims against themselves.
b) Processing or transformation of the title-retention goods shall always be effected for us as manufacturer, with the result that we are the immediate owner of the processed or transformed property.
If the goods are processed or transformed with the use of other items which do not belong to us, we shall acquire co-ownership of the new thing in the proportion of the value of the title-retention goods to the other processed or transformed items at the time of the processing or transformation.
If the goods are indivisibly connected, mingled or combined with other items which do not belong to us, we shall acquire co-ownership of the new thing in the proportion of the value of the title-retention goods (final invoice amount including VAT) to the other items at the time of the connection, mingling or combining. If the customer obtains sole ownership by connection, mingling or combining, it is agreed at the time when the contract is entered into that (co-)ownership of the resulting thing is transferred to us in the proportion described in the previous sentence. The customer shall keep safe custody for us of the sole ownership or co-ownership acquired in this way.
c) We shall be obliged to release the securities held for us at the request of the customer to the extent that their realizable value exceeds by more than 25% the claims to be secured. It shall be our decision which securities are to be released.
5. If our retention of title is legally ineffective under the law of the country to which the goods may be delivered, we shall be entitled to request the customer to provide a security of the same value and maintain it until final payment. If the customer does not comply with this request, we shall be entitled, irrespective of any period for payment agreed or any extension of payment, to demand immediate payment of all unsatisfied claims.
6. Insofar as we receive goods, we oppose the application of any retention of title provided by our supplier in its own favour.
§ 9 Product quality, warranty, notice of defects, limitation of warranty claims
1. A particular quality of our products shall be warranted or guaranteed only if this is expressly so stated in the contract. Particulars given in operating instructions issued by us are only recommendations. No material defect may be based on the argument that the operating instructions were followed.
Without the express agreement in writing of a particular purpose, the customer shall bear the sole risk of the technical and business suitability of our products, for example the risk as to whether they are suitable to be given official approval abroad.
The customer may only assert warranty claims with regard to a defect if it gives proof that the defect it asserts was already present at the date when the risk passed.
We are therefore in particular not liable
– for product defects arising from improper putting into operation, operation or use or from improper servicing or assembly undertaken against our instructions by the customer or by third parties. We shall also not be liable for damage arising from incorrect operation of a suction excavator by persons who cannot show that they took part in our training courses.
– for normal wear and tear
– for chemical, electrical or electrochemical influences on our product for which we are not responsible.
2. Warranty claims of the customer are subject to the fulfilment of commercial duties to examine the goods and to make complaints in respect of a defect immediately on receipt. Notices of defects must be made to us within the following periods:
– within three weeks after delivery in the case of defects which are obvious or which could be established in the course of a correct examination on receipt, which also includes use of the product on a trial basis;
– within two weeks after the discovery of a defect if it was not possible to discover this in the course of a correct examination on receipt (as above).
3. If the customer has complied with its duties to examine the goods and to make complaints in respect of a defect immediately on receipt and if our delivery is defective, we shall have the duty and the right, at our own choice, to remove the existing defect or to deliver a substitute product.
In order for us to establish the cause of the defect and to remedy defects and make substitute deliveries, the customer shall allow us the necessary time and opportunity. The customer shall notify us without delay if waiting for us to cure the defect would endanger operational safety or give rise to disproportionately great damage.
Remedying of defects shall normally take place at the seat of our company. In this case, the customer shall deliver and collect the vehicle or vehicle part at the seat of our company at its own cost. With regard to the costs of remedying defects, we shall bear only the costs of the replacement part and the installation costs directly relating to the defective part, including the costs of our mechanics.
If the remedy fails or if we do not cure the defect although we have a statutory duty to do so, the customer may withdraw from the contract or reduce the contract price in accordance with the statutory provisions. The customer may assert claims to damages, if the requirements for these claims are satisfied, to the extent set out in § 10.
After the fourth unsuccessful attempt to remove a defect, the remedy shall as a general rule be regarded as having failed.
4. We shall not be obliged to remedy a defect if the remedy is impossible or we cannot reasonably be expected to effect it by reason of disproportionate expense and effort within the meaning of section 275 (2) BGB. Provided that our General Terms of Sale, Payment and Delivery contain no provisions on this, the statutory provisions shall apply.
5. If we have warranty claims against an upstream supplier, we shall be entitled to assign these warranty claims to the customer. Our liability for breach of warranty is restricted in this case to the extent to which the customer cannot obtain compensation from our upstream supplier, even after conducting legal proceedings. The limitation of the claims against us shall be suspended for the duration of the negotiations or disputes conducted by the customer with the upstream supplier.
6. The customer shall have no rights to cure nor to reduction of price or withdrawal
• if a defect is the result of items or products which were delivered by the customer
• if the customer wishes a particular type of execution although we have pointed out to him the risk that the product may consequently be prone to defects
• if the customer buys used machinery from us.
The above limitations of liability shall not apply if we have fraudulently concealed the defect in question or have guaranteed that it would be absent.
7. Our liability to compensate for damage arising from product defects is governed by § 10.
8. The limitation period for warranty claims is one year from the statutory commencement of the limitation period.
If we undertake measures to cure the defect, the above limitation period shall commence anew only for claims which relate to the same defect or to consequences of a defect in the remedy.
In undertaking measures to cure the defect (remedy, subsequent delivery), we do not recognize a legal warranty claim of the customer against ourselves (with the consequence that the limitation period begins to run anew) unless we declare this expressly in writing.
Liability for the lack of a warranted characteristic; intentional, grossly negligent or fraudulent conduct; and claims relating to damages for the injury of life, body or health shall be governed by the statutory limitation provisions; the same applies in the case of claims under the Product Liability Act (Produkthaftungsgesetz).
§ 10 Liability in damages
1. In the case of damages claims directed against us, in particular claims for compensation for direct damage or for indirect damage (pecuniary loss including loss of profits) and other consequential damage, no matter on what legal basis the claims are based (impossibility, default, non-performance, negligence in the course of contracting, positive violation of contractual duty not consisting in delay of performance or due to impossibility [positive Vertragsverletzung] or tort),
we shall only be liable
• for intention
• for the gross negligence of our officers, directors and representative bodies or executive personnel
• for culpably causing injury to life, body or health
• for defects we have fraudulently concealed or whose absence we have warranted
• for defects in the delivery item, where the Product Liability Act imposes liability for personal injury or damage to privately used property
In the case of the culpable violation of essential duties which follow from the nature of the contract, the failure to comply with which would endanger the purpose of the contract (material contractual duties), we shall also be liable for gross negligence on the part of non-executive personnel and for slight negligence; in the latter case, our liability shall be limited to the damage typical of this type of contract and reasonably foreseeable.
2. Where our liability is excluded or restricted, this shall also apply to the personal liability of our agents for whom we are vicariously liable.
§ 11 Requirement of writing
Where these terms and conditions require declarations to be made in writing, the formal requirements shall also be satisfied by declarations sent by fax, telegram or email.
§ 12 Place of performance, place of jurisdiction, governing law, rule of interpretation
1. The place of performance for all duties and acts of performance arising from the contractual relationship shall be the seat of our company (Germersheim).
2. The place of jurisdiction for all kinds of disputes, including documentary evidence proceedings and cheque proceedings, shall be the seat of our company (Germersheim). However, we reserve the right to take legal action against the customer at the courts which would have jurisdiction if there were no agreement on place of jurisdiction.
3. The legal relationship with the customer shall be governed exclusively by the substantive law of the Federal Republic of Germany, excluding the application of the UN Convention on Contracts for the International Sale of Goods and excluding the German conflicts of laws provisions.
4. This Agreement and its terms shall be construed according to German law. If the English legal meaning differs from the German legal meaning of this Agreement and its terms, the German meaning shall prevail.
General Terms of Sale, Payment and Delivery_MTS
Date: March 2015
