GTC

General Terms and Conditions of Esselmann Fahrzeugtechnik GmbH & Co. KG (hereinafter referred to as EMFT)

1. General terms

1.1 The following General Terms and Conditions shall apply exclusively to all EMFT delivery and ancillary business. If the customer does not wish to accept these terms and conditions of business, he must inform us of this in writing without delay. We do not recognise any terms and conditions of the buyer that conflict with or deviate from our terms of business unless we have expressly agreed to their validity in writing. Our terms and conditions of business shall also apply if we carry out the delivery to the buyer without reservation in the knowledge of conditions of the buyer that conflict with or deviate from the seller’s terms and conditions of business.

1.2 Consumers within the meaning of these Terms and Conditions are natural persons with whom a business relationship is entered into without a commercial or independent professional activity being attributable to them. Entrepreneurs within the meaning of these Terms and Conditions are natural or legal persons or partnerships having legal capacity with whom a business relationship is entered into, who are acting in the exercise of a commercial or independent professional activity. Purchasers and customers within the meaning of these Terms and Conditions are both consumers and entrepreneurs.

1.3 Our Terms and Conditions shall also apply to all future business with the customer.

1.4 All contractual agreements, including subsidiary agreements and modifications of contract, as well as agreements with representatives and field staff, must be in writing. With the exception of managing directors, authorised signatories or authorised agents, EMFT employees are not entitled to make deviating verbal agreements. This also applies in particular to warranties and pre-contractual agreements.

1.5 All offers are subject to confirmation.

1.6 By placing an order, the customer bindingly declares that he wishes to purchase the ordered goods. EMFT shall be entitled to accept the contractual offer contained in the order within 6 weeks after receipt by EMFT.

1.7 Orders shall only lead to the conclusion of the delivery contract upon written order confirmation by EMFT.

1.8 Any deviations in the order confirmation compared to the order, in particular with regard to the design and realisation of the delivery item, the price, or the terms of payment and delivery shall be deemed to have been accepted by the purchaser if he does not object in writing within 8 days after receipt of the written order confirmation. The deviations shall be pointed out in the order confirmation in a conspicuous manner.

1.9 If the special requests of a customer require special elaborations, plan drawings, calculations and idea developments in terms of technical nature and taste, these representations are subject to copyright protection according to § 2 UrhG. An independent economic exploitation of the representation obliges the client to pay 5 % of the object value for which the representation served as a basis for production.

1.10 EMFT reserves the ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the purchaser. The customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties or reproduce them without the express consent of the seller. Upon EMFT’s request, the customer shall return these items to EMFT in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

2. Delivery items

2.1 The delivery items correspond to the general EMFT offers, supplemented and specified by the special requests of the purchaser.

2.2 EMFT reserves the right to make technical changes or deviations of the delivery item in form and colour insofar as they become necessary due to changed regulations and new findings and are useful and reasonable for the purchaser.

2.3 Information provided at the time of conclusion of the contract regarding performance, dimensions and weights, consumption of operating materials, operating costs, etc. are only approximate unless they have been expressly designated as binding.

3. Prices

3.1 The price of the delivery item stated by EMFT shall be without cashback or other discounts, but plus the statutory value added tax applicable at the time of delivery.

3.2 The price set by EMFT at the time of the conclusion of the contract for a delivery item which is to be manufactured individually as per order shall apply subject to the unchanged production costs between the time of the conclusion of the contract and the completion of the delivery item. EMFT reserves the right to change the prices accordingly if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective wage agreements or changes in the price of materials. EMFT shall prove these to the customer upon request.

3.3 If, by way of exception, a fixed price is expressly agreed, this shall only apply if no circumstances for which the purchaser is responsible have led to an increase in the manufacturing costs of the delivery item. The same shall apply if the order is postponed at the request of the purchaser and the prime costs increase in the meantime.

3.4 Price changes due to general economic developments shall only be permissible if there are more than 6 months between the conclusion of the contract and the agreed delivery and EMFT has increased its generally applicable prices by more than 5 % since the conclusion of the contract; then the target price from the day of delivery shall apply.

3.5 The aforementioned price adjustment clauses shall only apply vis-à-vis consumers, if the contractually agreed performance period for the delivery is more than 4 months.

3.6 In principle, cost increases can be charged additionally to the purchaser if they are based on his subsequent requests or instructions, if they occur during a delay in acceptance on the part of the purchaser or if they are otherwise culpably caused by him.

4. Delivery, delivery period, delay in delivery

4.1 All delivery items of EMFT shall on principle be delivered ex delivery works.

4.2 If, by way of exception, delivery or dispatch is agreed, this shall be for the account and at the risk of the purchaser.

4.3 Delivery items are to be accepted by the entrepreneur upon delivery in accordance with commercial law practice. The prerequisite for delivery is the cash payment of the object of purchase or fulfilment of an agreed substitute arrangement for the payment of the purchase price.

4.4 If the purchaser is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods shall pass to the purchaser upon handover to the purchaser, in the case of sale by delivery to a place other than the place of performance upon handover of the goods to the freight forwarder or carrier, however, no later than upon leaving the warehouse or, in the case of direct shipment ex works, upon leaving the works. This shall also apply if partial deliveries are made or EMFT has assumed further services.

4.5 The handover shall be deemed to have taken place if the customer is in default of acceptance.

4.6 Agreed delivery periods and dates are only approximate. They shall commence with the dispatch of the order confirmation, but not before all details of execution have been agreed and all information required from the purchaser is available and not before EMFT has received the agreed advance payment; they shall end with the notification of completion.

4.7 The conclusion of the contract is subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction has been concluded with the supplier. The customer shall be informed immediately of the non-availability of the service. The consideration shall be refunded without delay.

4.8 In the case of delivery items from individual production by EMFT according to special requests of the purchaser, compliance with the agreed delivery periods shall depend on the timely receipt by EMFT of the materials required for this purpose. If the production of the ordered delivery item has to be suspended in order to fulfil subsequent requests for changes and additions by the customer, the customer shall bear the risk of any necessary rescheduling in the production programme of the EMFT vehicle plant. If, in the event of subsequent change requests by the purchaser, parts already prefabricated or materials specially purchased by EMFT can no longer be used for the customer’s order, EMFT shall be entitled to charge the purchaser for these materials at cost price and to make them available.

4.9 EMFT shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract or the culpable breach of a material contractual obligation for which EMFT is responsible. Unless the delay in delivery is due to an intentional breach of contract by EMFT, the liability shall be limited to the foreseeable, typically occurring damage. Delays in delivery due to force majeure, natural disasters or other unforeseeable obstacles at EMFT as well as at its suppliers or sub-suppliers shall be accepted by the purchaser if they do not exceed 4 months. After expiry of this period, the purchaser shall declare whether they will adhere to the order at the next possible date or withdraw from the contract.

5. Payment, default in payment

5.1 Unless otherwise agreed, down payments shall be made immediately upon receipt of the respective invoices.

5.2 If the parties have agreed that 1/3 of the purchase price is to be paid on the date specified in the order confirmation at the latest, then the following shall apply: If the purchaser is in default with the down payment in the amount of 1/3 of the purchase price for more than 14 days, EMFT shall be entitled to declare that it refuses to accept the performance (down payment) after setting a grace period of 14 days. After expiry of the deadline, EMFT shall be entitled to claim damages for non-performance and to withdraw from the contract (§ 326 BGB). The setting of a grace period shall not be required if the purchaser seriously and finally refuses acceptance or is manifestly unable to pay the purchase price within this period. If EMFT claims damages, these shall amount to 15 % of the purchase price. The amount of damages shall be set higher or lower if EMFT proves a higher damage or the customer proves a lower damage.

5.3 The purchase price plus remuneration for ancillary services shall be due for payment upon handover of the delivery item, but in any case within 30 days of the invoice date. After expiry of this period, the buyer shall be in default of payment.

5.4 Cheques, bills of exchange and payment notices shall only be accepted on the basis of a special agreement and only on account of payment, with collection costs and discount charges being charged.

5.5 If partial payments have been agreed, the entire remaining debt shall become due for payment immediately – regardless of the maturity of any bills of exchange – if the customer is 14 days in arrears with an instalment, if he ceases to make payments, or if insolvency proceedings have been applied for in respect of his assets.

5.6 If the purchaser is in default with payments – in case of agreements of partial payments with two successive instalments – EMFT shall be entitled to withdraw from the contract after having granted a reasonable grace period and to claim damages for non-performance.

5.7 During the period of default, the consumer shall pay interest on the monetary debt at a rate of 5% above the base rate.

5.8 During the period of default, the entrepreneur shall pay interest on the monetary debt at a rate of 8% above the base rate.

5.9 EMFT reserves the right to prove and claim higher damage caused by delay from the purchaser.

5.10 The purchaser may only offset claims of EMFT if the counterclaim of the purchaser is undisputed, has become res judicata or is ready for a decision in the legal dispute; the purchaser may only assert a right of retention insofar as it is based on claims arising from the same contract.

6. Acceptance

6.1 The purchaser is obliged to accept the delivery item at the agreed location within 8 days after receipt of the notification of provision and is entitled to inspect the delivery item for execution in accordance with the contract. If, during the acceptance test, the delivery item shows defects beyond what is reasonable, the purchaser may set a deadline of 30 days for the rectification of the defects and defer acceptance. If the deadline expires in vain, the purchaser may refuse acceptance and withdraw from the contract.

6.2 If the customer remains in default with the acceptance of the delivery item for more than 14 days from receipt of the notification of provision, EMFT shall be entitled, after setting a grace period of 14 days, to declare that it will refuse acceptance of performances after expiry of the grace period and shall then be entitled to withdraw from the contract and demand compensation for damages. The setting of a grace period shall not be required if the purchaser seriously and finally refuses acceptance or is obviously unable to pay the purchase price even within this period. If EMFT claims damages, these shall amount to 15 % of the purchase price. The amount of damages shall be set higher or lower if EMFT proves a higher damage or the customer proves a lower damage.

7. Retention of title

7.1 In the case of contracts with consumers, we retain ownership of the delivery item until the purchase price has been paid in full. In the case of contracts with entrepreneurs, we shall retain title to the delivery item until all claims to which EMFT is entitled from the current business relationship, including any refinancing and reverse bills of exchange, have been settled in full.

7.2 For the duration of the retention of title, the purchaser shall be entitled to possession and use of the object of purchase as long as they are not in default of payment and fulfil their obligations under the retention of title. In the event of conduct by the buyer in breach of contract, in particular in the event of default in payment, breach of their obligations under the retention of title, application for insolvency proceedings against the assets of the buyer, the seller shall be entitled, after setting a reasonable deadline, to withdraw from the contract and to demand the return of the goods, without the buyer being entitled to a right of retention. Should a third party have obtained possession of the delivery item via the purchaser, the purchaser hereby assigns in advance their claim for return against the third party to EMFT.

7.3 All costs of taking back and recycling or utilising the delivery item shall be borne by the customer. These amount to 10 % of the realisation proceeds plus VAT without proof. They shall be set higher or lower if EMFT proves higher costs or the customer proves lower costs. The proceeds shall be credited to the purchaser after deduction of the costs and other claims of EMFT in connection with the delivery contract.

7.4 In the event that the purchaser, in agreement with EMFT, assigns the delivery item to a financing institution or similar as security, they hereby assign their claim for return and reassignment to EMFT in advance.

7.5 As long as EMFT retains title to the delivery item or has a claim to reassignment, the buyer shall be obliged to inform EMFT without delay of any encroachment by a third party on EMFT’s rights and to support EMFT to the best of their ability to protect their rights.

7.6 If the entrepreneur acquires the delivery item with EMFT’s knowledge for resale, he shall be permitted to do so under the following conditions:

a) The purchaser shall ensure that EMFT’s retention of title to the delivery item is maintained and that acquisition in good faith on the part of third parties is excluded by reference to the retention of title.

b) If the delivery item includes a document proving ownership of the delivery item, e.g. vehicle registration document, the purchaser shall inform the buyer that EMFT shall not be obliged to surrender the document until the retention of title has expired. In such cases, the vehicle registration document shall be sent by EMFT to the registration office responsible for the final purchaser and returned to EMFT after registration has been completed.

c) The customer shall be obliged to inform EMFT of the name and address of the purchaser in good time before reselling the delivery item so that EMFT is in a position to object to the resale if EMFT’s rights appear to be endangered thereby.

d) The customer’s claims arising from the resale of the delivery item, from an insurance claim or for any other legal reason shall be deemed to have been assigned to EMFT in advance by way of security with first priority in the amount of the value of the object subject to retention of title. EMFT accepts the assignment. The pledging or transfer by way of security of the object and a further cession of the claims assigned to EMFT shall not be permitted. The purchaser shall be authorised to collect and use the claims from the resale despite assignment to EMFT as long as they meet their payment obligations to EMFT punctually. The right to resell and to collect outstanding debts shall expire in the event of a suspension of payments, the application for or opening of insolvency proceedings, a protest of a cheque or bill of exchange or a seizure that has taken place. Assigned outstandings received thereafter shall immediately be accumulated in a special account. Insofar as more than 120 % of EMFT’s total claims are secured beyond doubt by advance assignments, the surplus of outstanding debts shall be released at the request of the purchaser at EMFT’s discretion.

7.7 The purchaser shall be obliged to ensure that the delivery item is maintained in proper condition for the duration of the retention of title and that any necessary repairs are carried out professionally without delay, if necessary by EMFT. This shall be made a special condition for a third party purchaser.

8. Warranty and liability

8.1 In the case of new delivery items, the warranty period for entrepreneurs is one year from delivery of the goods, unless otherwise agreed. In the case of used delivery items, the warranty obligation for consumers is one year from delivery of the goods. EMFT shall not assume any liability for defects to entrepreneurs in the case of used delivery items unless this has been expressly agreed in writing with the purchaser.

8.2 The entrepreneur’s rights in respect of defects presuppose that he has complied with his obligations to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB).

8.3 In the event of a defect those parts shall be repaired or replaced free of charge at EMFT’s reasonable discretion which prove to be unusable or impaired in their usability as a result of a circumstance existing at the time of the passing of risk – in particular due to a lack of design, poor building materials or defective workmanship. In all cases, only those parts that have defects in the material or in the workmanship and those parts that are inevitably damaged by these defects despite proper handling of the item shall be replaced. Replaced parts shall become the property of EMFT without reservation. With reference to para. 6.1 (Acceptance), first sentence, it is assumed that the delivery item accepted by the purchaser is free of defects. If the purchaser nevertheless subsequently claims defects, he shall be required to provide evidence thereof. EMFT then decides whether and by whom the alleged defects should be rectified, in a workshop close to the location or in the factory itself. Transport, transport costs and transport risk shall be borne by the purchaser.

8.4 If the supplementary performance fails twice, the purchaser may, at their option, demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal). However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the purchaser shall not be entitled to withdraw from the contract. If the customer chooses to withdraw from the contract due to a legal or material defect after two attempts at supplementary performance have failed, he shall not be entitled to any additional claim for damages due to the defect. If the purchaser chooses compensation after two failed attempts at supplementary performance, the delivery item shall remain with the purchaser if this is reasonable for them. Compensation is limited to the difference between the purchase price and the value of the defective item. This shall not apply if EMFT has fraudulently caused the breach of contract.

8.5 If the purchaser is an entrepreneur, only the manufacturer’s product description shall be deemed agreed as the quality of the delivery item. Public statements, recommendations or advertising by the manufacturer do not constitute a contractual description of the quality of the goods.

8.6 If the purchaser receives defective assembly instructions, the seller shall only be obliged to deliver assembly instructions that are free of defects and this only in case the defect in the assembly instructions prevents proper assembly.

8.7 In the event of defects in components of other manufacturers which EMFT cannot remedy for licensing or factual reasons, EMFT shall, at their option, assert their warranty claims against the manufacturers and suppliers for the account of the purchaser or assign them to the purchaser. Warranty claims against EMFT shall only exist in the case of such defects under the other conditions and in accordance with these General Terms and Conditions if the judicial enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute the limitation period for the relevant warranty claims of the purchaser against EMFT shall be suspended.

8.8 The customer does not receive any guarantees in the legal sense from us. Third party guarantees remain unaffected by this.

8.9 EMFT shall be entitled to reject warranty claims of the purchaser if:

a) the delivered item has been modified by a third party or by the installation of parts of a third party origin and the defect or damage is causally related to the modification;

b) the purchaser has not complied with the regulations on the treatment of the delivered item;

c) the purchaser has not had the inspections prescribed by the operating and maintenance instructions properly carried out;

d) an exceedance of the permissible load is detected;

e) in the event of natural wear and tear and damage caused by culpable or improper handling.

8.10 EMFT shall be liable to the purchaser for intent and gross negligence in accordance with the statutory provisions. Unless EMFT intentionally breaches a contractual obligation, liability shall be limited to the direct average damage which is foreseeable and typical for the type of goods. EMFT shall be liable in accordance with the statutory provisions if EMFT culpably breaches a material contractual obligation. Unless the breach of contractual duty is due to intent on the part of EMFT, liability shall be limited to the foreseeable, typically occurring average damage according to the type of goods. In all other cases, EMFT’s liability – irrespective of the legal grounds – shall be excluded. The above limitations of liability do not apply to claims of the purchaser arising from product liability. Furthermore, the limitations of liability do not apply in the event of culpable injury to the life, body or health of the customer.

8.11 EMFT shall not be liable for defects or damages of any kind whatsoever which occur due to installations or additions on the part of the purchaser. In such cases, the purchaser shall be obliged to take care of any necessary official acceptances, requirements and approvals at their own expense. This applies especially to modifications in the permissible vehicle weights.

8.12 Insofar as EMFT provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by EMFT, this shall be done free of charge and to the exclusion of any liability.

9. Miscellaneous

9.1 The place of performance for mutual, present and future claims arising from the business relationship shall be the registered office of EMFT.

9.2 The place of jurisdiction, also for actions in proceedings concerning documents, bills of exchange and cheques, in the business relationship with fully-qualified merchants shall be the local court of Zeven; however, EMFT shall also be entitled to choose the court having jurisdiction in accordance with the general statutory provisions.

9.3 Should any provision of this contract be or become invalid, the validity of the remaining provisions shall not be affected. The contracting parties agree already now to replace the invalid provision with a provision that comes as close as possible to the economic purpose pursued by the invalid provision.

9.4 Otherwise, German law shall apply to all contractual relationships.

9.5 The purchaser acknowledges that EMFT stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the fulfilment of the contract.

27419 Lengenbostel, 28.07.2014