Terms and conditions sale
General Terms and Conditions of Sale and Delivery for Forklift Trucks and Industrial Trucks
of Müller Maschinen e.K. – August-Euler-Str. 9 – 50259 Pulheim (hereinafter referred to as the “Seller”)
Forklift trucks and industrial trucks are generally approved only for in-plant traffic on smooth, level hall floors such as industrial screed or concrete, and outdoors on paved surfaces, concrete, or asphalt. For use on public roads, the provisions of the German Road Traffic Licensing Regulations (StVZO) apply.
§ 1 General Provisions
a) These General Terms and Conditions of Sale and Delivery (hereinafter also referred to as the “Terms and Conditions”) apply to all contracts for deliveries and services between the Seller and its customers (hereinafter the “Buyer”), but exclusively to entrepreneurs, legal entities under public law, or special funds under public law acting in the course of a commercial or independent professional activity at the time of contract conclusion.
b) These Terms and Conditions do not apply to rental agreements, leasing contracts, or purchase conditions, for which separate General Terms and Conditions of the Seller apply. Conflicting or deviating conditions of the Buyer are not recognized unless expressly confirmed in writing by the Seller. Execution of deliveries by the Seller despite knowledge of conflicting or deviating conditions of the Buyer shall not constitute acceptance thereof – these Terms and Conditions shall remain applicable.
c) Individual agreements with the Buyer (including ancillary agreements, amendments, or supplements) shall take precedence over these Terms and Conditions. Deviating conditions are valid only if expressly confirmed in writing by the Seller.
§ 2 Offer and Order Confirmation
a) The Seller’s offers are non-binding until the purchase contract is concluded.
b) The purchase contract is concluded either by separate written agreement or by the Seller’s written order confirmation. The content of such written agreements or the Seller’s order confirmation and these Terms and Conditions shall govern.
c) Documents belonging to an offer, such as photos, drawings, sketches, dimensions, performance data, fuel and oil consumption, operating costs, etc., are only approximate unless expressly designated as binding. The Seller retains ownership and copyright in such documents and cost estimates; they may not be disclosed to third parties without prior written consent and must be returned upon request.
d) Only characteristics expressly designated as a “guaranteed characteristic” shall be deemed guaranteed. No other characteristics are warranted, whether expressly or implied.
e) If the Buyer’s order qualifies as an offer under § 145 BGB (German Civil Code), the Buyer shall be bound by such order for a period of four weeks, commencing on the date the Seller receives the order letter. The Seller’s written acknowledgment (order confirmation) shall be decisive for the binding effect on both parties.
§ 3 Prices and Terms of Payment
a) Unless otherwise agreed, prices are net ex works Pulheim (EXW – INCOTERMS 2000; from January 1, 2011 INCOTERMS 2010), excluding ancillary costs such as freight or customs duties. Such costs shall be invoiced separately if incurred. Value Added Tax is not included in the prices and will be charged separately at the statutory rate applicable on the date of invoicing.
b) Unless otherwise agreed, payment of the purchase price must be made no later than 10 working days after receipt of the invoice, without deduction. The decisive factor is the receipt of funds by the Seller or the crediting of the amount to the Seller’s account. After this period, the Buyer shall be in default.
c) Cheques and bills of exchange are accepted for payment only if expressly agreed in advance and only on account of performance. All costs incurred in the collection of cheques or bills of exchange shall be borne by the Buyer. Payments may only be made directly to the Seller; payments to agents or intermediaries are not permitted unless expressly agreed in writing.
d) If the Buyer fails to comply with the agreed payment terms, or if circumstances become known after conclusion of the contract that jeopardize the Seller’s claim to payment due to the Buyer’s insufficient financial capacity, the Seller shall be entitled to make outstanding deliveries or services only against advance payment or the provision of security.
e) The Buyer shall have rights of set-off or retention only with respect to claims that are legally established, undisputed, or ready for decision in pending legal proceedings.
§ 4 Delivery, Delivery Period, Default in Acceptance or Delivery
a) Delivery dates specified by the Seller are non-binding planning dates unless expressly agreed as fixed dates in writing. Partial deliveries and services shall be permissible within reasonable limits.
b) The Seller’s obligation to deliver presupposes timely and proper performance by the Buyer of his obligations, in particular payment and, if applicable, provision of agreed securities. The defense of non-performance of the contract remains reserved.
c) If the Buyer defaults in acceptance, the Seller shall be entitled to claim compensation for any additional expenses incurred (e.g. storage of the goods). If the Buyer culpably breaches other duties to cooperate, the Seller may claim compensation for any resulting damages (including additional expenses). Further claims, including claims for damages due to default in acceptance combined with debtor’s delay, remain reserved.
d) Delivery periods shall be reasonably extended in the event of labor disputes (in particular strikes and lawful lockouts) and in the event of unforeseen obstacles such as fire damage, floods, lawful strikes, lawful lockouts, or epidemics and pandemics beyond the Seller’s control, provided such obstacles demonstrably have a significant impact on completion or delivery of the goods. The same applies if such circumstances arise at subcontractors. These circumstances shall not be attributable to the Seller even if they occur during a period of delay. The Seller shall notify the Buyer of the commencement and end of such circumstances as soon as reasonably possible in important cases.
§ 5 Acceptance, Transfer of Risk, Shipment, and Export
a) Unless otherwise expressly agreed in writing, delivery shall take place ex works Pulheim, either by Buyer’s collection or shipment. If the Buyer does not declare readiness for acceptance in writing at least one week before the scheduled delivery date, the Seller may ship the goods at the Buyer’s expense and risk. If the goods are collected by the Buyer, risk shall pass upon acceptance. In the case of shipment, risk passes once the goods have left the Seller’s premises or have been handed over to the carrier or forwarding agent, even in the case of partial deliveries and regardless of whether carriage-paid delivery has been agreed. If shipment is delayed at the Buyer’s request or due to acceptance default, risk shall pass as of the date of readiness for shipment. Costs arising from delay (particularly storage) shall be borne by the Buyer.
b) If the Buyer requests transport of the goods abroad, the Buyer shall be solely responsible for compliance with all customs, tax, and other legal and administrative import/export requirements. The Buyer shall in particular issue and, where necessary, supplement all required forms and arrange customs clearance of the goods and/or necessary accompanying documentation.
c) Transport insurance shall only be taken out by the Seller upon the Buyer’s written request; the costs of such insurance shall be borne by the Buyer.
d) Packaging materials shall become the property of the Buyer and will not be taken back.
§ 6 Retention of Title
a) The Seller retains ownership of the goods until full payment of all claims arising from the business relationship with the Buyer has been received. In the case of a current account, all goods subject to retention of title serve as security for the Seller’s balance claim.
b) In the event of breach of contract by the Buyer, in particular default in payment, the Seller shall be entitled to take back the goods. Such repossession shall not constitute withdrawal from the contract unless expressly declared in writing by the Buyer. In the event of attachment of the goods by the Seller, this shall always constitute withdrawal from the contract.
c) Following repossession, the Seller is entitled to realize the goods. The proceeds of such realization, less reasonable realization costs, shall be credited against the Buyer’s liabilities.
d) The Buyer is obliged to treat the goods with care and, in particular, to adequately insure them at his own expense against fire, water, and theft damage at replacement value. If maintenance and inspection work is required, the Buyer must have this performed at his own expense by the Seller’s customer service.
e) In the event of seizure or other interventions by third parties, the Buyer must notify the Seller immediately in writing so that the Seller may bring an action under § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse the Seller for judicial and extrajudicial costs of such action, the Buyer shall be liable for the Seller’s loss.
f) The Buyer is entitled to resell the goods in the ordinary course of business, but must maintain the Seller’s retention of title. The Buyer hereby assigns to the Seller all claims in the amount of the sales price (including VAT) against his customers or third parties arising from the resale, regardless of whether the goods were resold with or without processing.
g) The Buyer shall remain authorized to collect such claims after assignment. The Seller’s right to collect the claims himself remains unaffected. However, the Seller undertakes not to collect the claims as long as the Buyer meets his payment obligations from collected proceeds, is not in default of payment, and no insolvency proceedings are filed or cessation of payment occurs. In such cases, the Seller may require the Buyer to disclose the assigned claims and debtors, provide all information necessary for collection, hand over the relevant documents, and notify debtors of the assignment.
h) Any processing or transformation of the goods by the Buyer shall always be carried out on behalf of the Seller. If the goods are processed with other items not owned by the Seller, the Seller acquires co-ownership of the new item in proportion to the value of the goods to the other processed items at the time of processing. The same rules apply to the new item as to goods delivered under retention of title.
i) The Seller undertakes to release securities to which he is entitled at the Buyer’s request to the extent that the value of such securities (corresponding to acquisition cost within the meaning of § 255 (1) HGB) exceeds the secured claims by more than 10%. The Seller shall select which securities to release.
§ 7 Liability for Defects, Other Liability, and Warranty
a) Under these Terms and Conditions, used forklift trucks and industrial trucks are sold without any warranty for defects and with exclusion of liability for material defects.
b) The Seller’s liability for damages, regardless of legal basis, in particular due to impossibility, breach of pre-contractual duties, or tort, is limited as follows: The Seller is liable in cases of fraudulent concealment of a defect, for damages resulting from injury to life, body, or health, and in cases of intent. In cases of gross negligence, liability is limited to foreseeable, contract-typical damage. In cases of simple negligence of essential obligations deriving from the nature and purpose of the contract, the Seller’s liability is likewise limited to foreseeable, contract-typical damage. Except as set forth in § 7(b)(1) and (2), the Seller shall not be liable for damages caused by simple negligence.
c) Insofar as liability for damages against the Seller is excluded or limited, this shall also apply to the personal liability for damages of the Seller’s employees, staff, and agents.
d) Any further claims for damages are excluded.
§ 8 Data Protection and Personal Data
a) The Seller is entitled to process and store data relating to the Buyer received in connection with the business relationship – even if originating from third parties – in compliance with the provisions of the German Federal Data Protection Act, and to have such data processed and stored by third parties engaged by him.
§ 9 Applicable Law
a) Irrespective of the Buyer’s place of business, the contractual relationship shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
§ 10 Place of Performance and Jurisdiction
a) Place of performance for all obligations arising from or in connection with the contract is the Seller’s registered office in 50259 Pulheim. b) If the Buyer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Seller’s registered office in 50259 Pulheim. The same applies if the Buyer has no general place of jurisdiction in Germany, relocates his residence or habitual place of abode abroad after contract conclusion, or if residence or habitual abode is unknown at the time of legal action. The Seller may, however, also bring an action before the court having jurisdiction over the Buyer.