Phone: +49 8331 15-0
Fax: +49 8331 239
Management board members:
Friedrich Hesemann, Lothar Holder, Hubert Schaller
Chairman of the supervisory board: Dr. Christof Kemman
Headquarters and registry office: Memmingen
Tax code: 138/115/50 722
Turnover code: DE 812882017
Responsible according to § 5 TMG:
(address see above)
SCHOPF MASCHINENBAU GMBH
Phone +49 711 34000-0
Fax +49 711 34110-87
Friedrich Hesemann, Lothar Holder, Hubert Schaller
Turnover code: DE 145353101
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Data Protection Officer
Attorney and Data Protection Officer
of the Bar Associations of Munich and Bamberg
Wälder 27 a
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I. Conclusion of contract/assignment of rights and obligations by the purchaser
1. Applicability of these terms and conditions
1.1. The general terms and conditions (sales) (“GTC Sales”) shall apply to all business relationships of Goldhofer Aktiengesellschaft or of Schopf Maschinenbau GmbH (“Seller”) with the buyer. The GTC Sales shall be applicable only if the buyer is an entrepreneur (§ 14 of the Bürgerliches Gesetzbuch (the Civil Code, the “BGB”), a legal person under public law or an special fund (Sondervermögen) under public law within the meaning of § 310 para. 1 sent 1 BGB.
1.2. The GTC Sales shall apply exclusively. Any divergent, opposing, or supplemental general terms and conditions of business of the Seller shall have no applicability, even if the Seller does not separately object to their applicability in the individual case.
1.3. Any individual agreements made with the buyer in the individual case shall, in every case, take precedence over this GTC Sales. A written agreement or a written confirmation of the Seller shall be dispositive for the content of such agreements.
2. Entering into the Agreement/transfer of rights of the buyer’s
2.1. All offers of the Seller shall be subject to confirmation and non-binding, insofar as they are not expressly identified as being binding.
2.2. The buyer shall be bound to its order for four (4) weeks. This deadline shall be shortened to two (2) weeks in the case of items purchased which are “in stock” (auf Lager) at the Seller. The purchase agreement shall be entered into whenever the Seller confirms the order within the period in writing or the carries out the delivery.
2.3. Any assignment of the Seller’s rights arising from this Agreement shall require the written consent of the Seller.
3.1. The price of the item purchased is understood to be net ex works plus the respectively applicable statutory value-added tax, packaging, customs duties in the case of export deliveries, as well as fees and other public taxes.
3.2. The buyer shall be obligated to render to the Seller the receipts required for the procedure of producing substantiation (Nachweisführung) with regard to deliveries free from value-added tax, or to support the Seller for this purpose (confirmation of receipt or of equal value).
4. Payment and security
4.1. The purchase price and the prices for ancillary services shall be mature for payment immediate upon delivery or acceptance and invoicing. The Seller shall have the right to demand a reasonable advance payment. The Seller shall not be obligated to fulfill the order prior to taking the advance payment into receipt. Any stipulated completion dates shall be postponed by the period of time through the receipt of the advance payment. In the case of orders by customers having their domicile or business seat abroad, or in the event of justifiable indicators for a risk of non-payment, however, the Seller shall have the right, even within the scope of an ongoing business relationship, to carry out the delivery in whole or in part only against prior payment. The Seller shall declare a corresponding reservation by no later than upon the confirmation of the order. The delivery shall be effected only after prior complete payment.
4.2. Payment drafts, bills of exchange, and checks shall be accepted only for performance purposes made in consideration of reimbursement of expenses.
4.3. The buyer may set off against claims of the Seller only when then counterclaim of the buyer is undisputed or has been judicially determined; the buyer may assert a retention right only when (i) said right is based upon claims arising out of the same contractual relationship and (ii) the claim is undisputed or has been judicially determined.
4.4. Upon or after entering into the Agreement, the Seller shall be able to demand a suitable security (e.g., appropriate advance payment, bank surety, financing confirming, leasing agreement) for the purchase price.
4.5. If the placement of the security is delayed over ten (10) days past the demand, the deadlines shall be extended pursuant to sect. 5.1 mutatis mutandis by the duration of the delay.
5. Delivery and delivery default
5.1. Delivery dates and delivery periods shall be stipulated in writing and may be stipulated in a binding or in a non-binding manner. Delivery periods shall commence upon entering into the agreement. Delivery dates and periods shall be deemed as complied with by indicating readiness to deliver. If the buyer, upon demand, does not provide the specific details requisite for carrying out the order, then delivery dates and periods shall be extended by the corresponding period of time.
5.2. The buyer shall be able to require the Seller to deliver (warning) by no earlier than six (6) weeks after expiration of the stipulated non-binding delivery date/period. This period shall be shorted to two (2) weeks for vehicles which are present at the premises of the Seller. If a binding delivery date or a binding delivery period is exceeded, then the Seller shall already be in default upon any exceeding of the delivery date or the delivery date.
5.3. If the Seller comes into default with a delivery or performance, or if a delivery or a performance becomes impossible for the Seller for any reason then the liability of the Seller shall be limited to compensatory damages in accordance with sect. 12 of these GTC Sales.
5.4. Force Majeure (unforeseen circumstances and occurrence for which the Seller is not culpable and which could not have been avoided using the care and prudence of an ordinary merchant (Kaufmann)—e.g., labor disputes, war, fire, transportation obstacles, raw materials shortfalls, official measures)—or operational disruptions, both at the premises of the Seller as well as at those of its suppliers, which temporarily prevent the Seller, through no fault of its own, to deliver the item purchased upon maturity, shall postpone delivery dates and deadlines by the duration of the hindrance. If such disruptions result in a delay of more than four (4) months, then the buyer shall be able to withdraw from the Agreement.
6.1. The buyer shall be obligated to accept the item purchased within fourteen (14) days from notice of readiness to ship.
6.2. In the event of non-acceptance, the Seller shall be able to avail itself of its legal rights. If the Seller demands compensatory damages, then such shall be 15% of the net purchase price. The compensatory damages are to be set higher or lower if the Seller substantiates a greater amount of damages or if the Buyer substantiate lower damages.
7. Retention of title
7.1. The item purchased shall remain the property of the Seller until and through settlement of all receivables to which the Seller is entitled based on the purchase agreement. The retention of title shall also continue to exist for all receivables of the Seller vis-à-vis the buyer arising from an ongoing business relationship. During the term of the retention of title, the Seller shall have the right to possess the registration certificate part II.
7.2. As long as the retention of title exists, the buyer shall not be permitted either (i) to dispose of the item purchased or (ii) to contractually grant any use to third parties.
7.3. If the realizable value of the securitizations exceeds the receivables by more than 10%, then the Seller shall, upon demand of the buyer, release the securitizations of the option of the Seller.
8. Defect claims of the buyer for new vehicles
8.1. Details specified in the descriptions valid upon entering into the Agreement concerning the scope of delivery, appearance, performances, dimensions, weights, etc., of the contractual item shall constitute the substance of the Agreement; these are to be regarded as approximate and shall not constitute any guarantee, but rather shall serve as a yardstick to ascertain whether the item purchased is free of any defects. Any modification in design or shape, deviations in shade of color and any changes to the scope of the delivery remain reserved to the Seller, insofar as (i) the item purchased is not considerably changed and (ii) the modifications are reasonable for the buyer. Insofar as the Seller makes use of symbols or numbers to describe the order or the item purchased, no rights shall be able to be derived from these alone.
8.2. It shall be prerequisite for any claims of the buyer for defects that the buyer has complied with its statutory duties to inspect and to notify of defects (§ 377, § 381 of the Handelsgesetzbuch (the Commercial Code). If upon inspection or subsequently a defect is evinced, then the Seller is to notify of such in writing without undue delay. The notification shall be deemed as having been made without undue delay if it is effected within seven (7) business days, whereupon the timely dispatch of the notification shall suffice to preserve adherence to the deadline. Independently of this duty to inspect and notify of defects, the buyer shall have to provide written notification of any obvious defects within seven (7) business days of the delivery, whereupon the timely dispatch of the notification shall suffice here as well to preserve adherence to the deadline. If the buyer neglects to perform the proper inspection and/or notification of defect, then any liability shall be precluded for defects of which notification has not been made.
8.3. If the buyer demands subsequent performance, then such shall be limited to elimination of the defect. § 439 para. 2 BGB shall remain unaffected.
8.4. If (i) the subsequent performance has failed or if (ii) a reasonable deadline—to be set in writing by the buyer—for the subsequent performance has expired without result or disposable by operation of law, then the buyer may withdraw from the sale and purchase agreement or to reduce the purchase price. In the event of an insignificant defect, however, there shall be no right of withdrawal.
8.5. Any claims of the buyer for compensatory damage or for reimbursement of fruitless expenditures shall exist only under sect. 12 and shall be otherwise precluded.
9. Defect claims of the buyer for used vehicles
Used vehicles shall be sold exclusive of any and all claims for material defects. The exclusion of any liability for material defects shall not apply to any claims of the buyer for compensatory damage or for reimbursement of fruitless expenditures as contemplated under sect. 12.
10. Applicable to processing elimination of defects
10.1. The buyer shall have to assert any defect-elimination claims with the Seller or with the Service Partner which is (i) authorized by the Seller and (ii) closest to the location of the item purchased. In the latter event, the buyer shall have to inform the Seller thereof in writing and without undue delay.
10.2. Any replacement parts shall become the property of the Seller and are to be handed over upon demand.
10.3. With respect to the parts installed for the elimination of defects, the buyer may assert warranty claims up to the expiration of the limitation period of the item purchased.
11.1. If the Seller takes back the item purchased for any reason the Seller shall appraise it. Upon request by the buyer, which can be made only without undue delay after return of the item purchased, a publicly appointed and sworn expert, e.g., the Deutsche Automobil Treuhand GmbH (DAT), shall be named by the buyer to determine the normal fair market value. If the buyer does not demand any such value appraisal, then the Seller shall, exercising its reasonable discretion, estimate the value for both contracting parties. Said estimate shall be binding.
11.2. If the return is based on a breach of duty of the buyer, then the buyer shall bear all of the expenses of the return and the recycling of the item purchased. The recycling expenses shall be—without any back-up material—five percent (5%) of the fair market value determined. Such expenses shall be fixed as higher or lower, if—using back-up material—the Seller substantiates higher expenses or the buyer substantiates lower expenses.
The Seller shall have unlimited liability under the Produkthaftungsgesetz (the Product Liability Act, the “ProdHaftG”) in cases of the express assumption of a warranty or of the procurement risk (Beschaffungsrisiko) as well as for malicious or grossly negligent breach of duty. The Seller shall also have unlimited liability in the event of malicious or negligent injury to life, limb, or health. For material and financial damages caused by slight negligence, the Seller shall be liable only in the event of the breach of such duties (i) the fulfillment of which facilitates the proper execution of the Agreement in the first place and (ii) upon whose fulfillment the buyer may rely to a particular degree (“Material Contractual Duties”)—limited, however, to damages (a) typical for such agreements and (b) foreseeable at the time of entering into the Agreement.
13.1. In derogation of § 438 para. 1 no. 3, the general limitation period for any claims of the buyer arising from material and title defects shall be one (1) year from delivery. Insofar as an acceptance is stipulated, the limitation period shall commence with the acceptance of the item purchased.
13.2. The limitation periods above shall not apply to limitation periods provided by the ProdHaftG. § 438 para. 1 no. 1, no. 2 and § 438 para. 3 BGB shall also not be affected. Exclusively the statutory limitation periods shall apply to any compensatory damages claims of the buyer as contemplated under sect. 12.
14.1. The contracting parties are committed to a business environment free of corruption. They shall be obligated to refrain from corrupt conduct and other criminal acts and to take all requisite measures to avoid such. In particular, the contracting parties shall be obligated to take preventative measures against the following enumerated list of cases of severe misconduct:
a) Criminal acts in business transactions, including, but not limited to, money laundering, fraud, breach of fiduciary duty, document forgery, forgery of technical records, forgery of probative data, constructive false certification (mittelbare Falschbeurkundung), suppression of documents, and anti-competitive arrangements with respect to tender offers.
b) Offering, promising, or bestowing advantages upon foreign or domestic officials, office-holders, or those parties especially obligated to public service who assist with the issuance or execution of job orders.
c) Offering, promising, or bestowing and/or demanding, being promised, and acceptance of advantages vis-à-vis business partners as consideration for an unfair preference in national or international business activity.
d) Betrayal of, or obtaining for one’s private purposes, business and trade secrets as well as the unauthorized exploitation of templates.
e) Violations of national and European competition and antitrust laws.
14.2. In the event of a breach of the obligation arising from 14.1, the other contracting party shall be able to extraordinarily terminate the Agreement.
14.3. In the event of a breach of the obligation arising from 14.1, a contracting party shall be able to exclude the breaching contracting party from the awarding of future orders.
15. Choice of law, place of jurisdiction, miscellaneous
15.1. The law of the Federal Republic of German shall apply exclusively to the contractual relationship between the buyer and the Seller, to the exclusion of (i) any conflicts-of-laws standards international private law and (ii) the United Nations Convention on Contracts for the International Sale of Goods.
15.2. For any and all present and future claims arising out of the business connection with merchants (Kaufleute), including bills receivable and check requests, the exclusive place of jurisdiction shall be the seat of the Seller.
15.3. Place of performance shall be the seat of the Seller.
15.4. The Seller shall treat personal data of the buyer in accordance with the Bundesdatenschutzgesetz (the Federal Data Protection Act, the “BDSG”), and shall appoint a data protection officer. There shall be a public procedure register as contemplated under the BDSG.
15.5. The customer shall ensure: (i) that goods acquired from or warehoused by authorized economic operators are warehoused in secure workshops and in secure transshipment points, (ii) that said goods are protected from unauthorized access, (iii) that the staff used for this purpose is reliable, and (iv) that business partners acting on the customer’s behalf are instructed that they too must implement measures to secure the aforementioned supply chain.
15.6. Should any clause of these GTC Sales be ineffective, such shall not have a deleterious impact on the effectiveness of the Agreement and of the remaining clauses. To replace the ineffective or void provision, a new provision is to be found that satisfies its economic intention.