General terms and conditions of sale of used commercial vehicles (GTCSU)

Diet­rich GmbH, An der Sieg­tal­brü­cke 16, 57080 Siegen

A Scope of appli­ca­tion
1. These Gene­ral Terms and Condi­ti­ons of Sale for Used Vehi­cles Commer­cial (“GTCSU”) shall apply to the sale of used vehi­cles to the Buyer. Howe­ver, the GTCSU shall only apply if the Buyer is an entre­pre­neur (Section 14 BGB), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) BGB.
2. Our GTCSU apply exclu­si­vely. Devia­ting, conflic­ting or supple­men­tary Gene­ral Terms and Condi­ti­ons (GTC) of the Buyer shall only become part of the contract if and inso­far as we have expressly agreed to their vali­dity. This requi­re­ment of consent shall also apply if the Buyer refers to its GTC within the scope of the order and we have not expressly objec­ted to the GTC.
3. These GTCSU apply to contracts for the sale (purchase contract) and/or deli­very of mova­ble goods (“object of purchase”). Unless other­wise agreed, the GTCSU shall also apply in the version valid at the time of the Buyer’s order or in the version last commu­ni­ca­ted to him in text form as a frame­work agree­ment for simi­lar future contracts, without us as the Seller having to refer to them again on a case-by-case basis.
4. Indi­vi­dual agree­ments made with the Buyer in indi­vi­dual cases (inclu­ding colla­te­ral agree­ments, supple­ments and amend­ments) and infor­ma­tion in our order confir­ma­tion shall take prece­dence over these GTCSU. Subject to proof to the contrary, a writ­ten contract or our writ­ten confir­ma­tion shall be decisive for the content of such agree­ments.
5. Legally rele­vant decla­ra­ti­ons and noti­fi­ca­ti­ons of the buyer with regard to the contract (e.g. noti­fi­ca­ti­ons of defects, setting of dead­lines, with­dra­wal or reduc­tion) must be made in writing, i.e. in writ­ten and text form (e.g. letter, e‑mail). Further statu­tory formal requi­re­ments and further evidence (if neces­sary in case of doubt about the legi­ti­macy of the declar­ant) remain unaf­fec­ted.
6. If refe­ren­ces are made to the vali­dity of statu­tory provi­si­ons, it should be noted that these are for clari­fi­ca­tion purpo­ses only. The statu­tory provi­si­ons shall apply — even if no corre­spon­ding clari­fi­ca­tion has been made — to the extent that they are not amen­ded or excluded by these GTCSU.

B Offer and conclu­sion of contract
1. Our offers are subject to change and non-binding. This shall also apply if we have provi­ded the Buyer with cata­logs, tech­ni­cal docu­men­ta­tion (e.g. drawings, plans, calcu­la­ti­ons, calcu­la­ti­ons, refe­ren­ces to DIN stan­dards) and other product descrip­ti­ons or docu­ments (inclu­ding in elec­tro­nic form). We reserve the property rights and copy­rights to all docu­ments provi­ded to the Buyer in connec­tion with the placing of the order. These docu­ments may not be made acces­si­ble to third parties unless we give the Buyer our express writ­ten consent.
2. A purchase contract shall only be concluded if the buyer has demons­tra­bly sent us a bindin­gly signed order and we as the seller confirm the accep­tance of this order — within a maxi­mum period of six weeks after receipt of the order — by our signa­ture.
3. In the event that we as the seller do not accept the buyer’s order within the period speci­fied in section B.2, no purchase contract shall be validly concluded and all docu­ments sent to the buyer shall be retur­ned to us without delay.
4. At our request as seller, the buyer is obli­ged to provide proof of finan­cing for the object of purchase (bank confir­ma­tion or confir­ma­tion of purchase from a leasing company). If the proof of finan­cing is not provi­ded within a reasonable period of time, we as the seller are entit­led to with­draw from the contract. This shall not affect our claim for dama­ges as the seller.
5. If the contract is cance­led by mutual agree­ment, the buyer must pay a cancel­la­tion fee of 15% of the invoice amount inclu­ding the appli­ca­ble VAT, without preju­dice to our right to claim any addi­tio­nal dama­ges.
6. Our repre­sen­ta­ti­ves have no autho­rity to conclude contracts, they are only inter­me­dia­ries. We shall not be bound by verbal agree­ments made with our repre­sen­ta­ti­ves; special agree­ments devia­ting from the writ­ten contract and these GTCSU shall only be effec­tive in writing and require our express accep­tance.
7. the Buyer is obli­ged to comply with the appli­ca­ble export control and sanc­tions regu­la­ti­ons and laws of the Euro­pean Union (EU), the United States of America (US/USA) and other juris­dic­tions (“Export Control Regu­la­ti­ons”).

C Prices and payment agree­ments
1. Unless other­wise agreed in writing in indi­vi­dual cases, our current prices at the time of conclu­sion of the contract shall apply ex warehouse, plus statu­tory VAT. The costs of pack­a­ging shall be invoi­ced sepa­ra­tely. Unless a fixed price agree­ment has been made, we reserve the right to make reasonable price chan­ges due to chan­ges in labor, mate­rial and distri­bu­tion costs for deli­veries made three months or more after conclu­sion of the contract.
2. Within the frame­work of a sales ship­ment, the buyer shall bear the trans­por­ta­tion costs ex warehouse and the costs of any trans­por­ta­tion insu­rance reques­ted by the buyer. In the event that we do not invoice the trans­por­ta­tion costs incur­red in the indi­vi­dual case, we shall charge a flat-rate trans­por­ta­tion fee custo­mary in the indus­try (exclu­ding trans­por­ta­tion insu­rance). Any customs duties, fees, taxes and other public char­ges shall be borne by the buyer.
3. Payment of the purchase price must be made exclu­si­vely by bank trans­fer to the busi­ness accounts speci­fied by us. The deduc­tion of a discount is only permit­ted if speci­fi­cally agreed in writing. We are entit­led to send invoices elec­tro­ni­cally to the e‑mail address provi­ded by the buyer.
4. Unless other­wise agreed, the purchase price shall be due and paya­ble imme­dia­tely upon provi­sion of the object of purchase for hando­ver or accep­tance. Howe­ver, we are entit­led at any time, even within the frame­work of an ongo­ing busi­ness rela­ti­onship, to make a deli­very in whole or in part only against advance payment. We shall declare a corre­spon­ding reser­va­tion at the latest with the order confir­ma­tion.
5. The buyer shall be in default if the above payment period expi­res. During the period of default, inte­rest shall be char­ged on the purchase price at the appli­ca­ble statu­tory default inte­rest rate pursu­ant to Section 288 (2) of the German Civil Code (BGB) in the amount of eight percen­tage points above the respec­tive base inte­rest rate. We reserve the right to claim further dama­ges caused by default. Our claim against merchants for commer­cial matu­rity inte­rest in accordance with Section 353 HGB remains unaf­fec­ted.
6. If it is fore­seeable after conclu­sion of the contract that our claim to payment of the purchase price is jeopar­di­zed due to the buyer’s inabi­lity to pay (e.g. due to an appli­ca­tion for the opening of insol­vency procee­dings), we shall be entit­led to refuse perfor­mance in accordance with the statu­tory provi­si­ons and, if neces­sary after setting a dead­line, to with­draw from the contract (§ 321 BGB). In the case of contracts for which the manu­fac­ture of non-fungi­ble items (custom-made products) is owed, we may declare our with­dra­wal imme­dia­tely. The statu­tory provi­si­ons on the dispensa­bi­lity of setting a dead­line shall remain unaf­fec­ted in this respect.

D Rights of reten­tion
The buyer shall only be entit­led to rights of set-off or reten­tion if his claim has been legally estab­lished or is undis­pu­ted and his coun­ter­claim is based on the same contrac­tual rela­ti­onship.

E Deli­very period and delay in deli­very
1. The deli­very period shall be agreed indi­vi­du­ally or speci­fied by us upon accep­tance of the order. Agreed deli­very peri­ods and deli­very dates are non-binding and are always subject to correct and timely deli­very by our suppli­ers.
2. The deli­very period shall only commence at the end of the day of the order confir­ma­tion and the receipt of any agreed advance payment. If the buyer chan­ges his order prior to deli­very, the deli­very period shall be inter­rupted and shall recom­mence upon receipt of the chan­ged order or upon receipt of the signed order confir­ma­tion.
3. We reserve the right to make chan­ges in design and form as well as devia­ti­ons in color during the deli­very period, provi­ded that the utility value of the goods is not funda­men­tally chan­ged as a result. All details in the descrip­ti­ons regar­ding perfor­mance, weights, dimen­si­ons, speed, color shades etc. are to be regarded as “appro­xi­mate”.
4. In the event that we are unable to meet contrac­tually agreed deli­very dead­lines for reasons for which we are not respon­si­ble, we must inform the buyer of this circum­s­tance imme­dia­tely and at the same time inform the buyer of the expec­ted or new deli­very dead­line. If a delayed deli­very cannot be made due to non-avai­la­bi­lity of the service even within the newly announ­ced deli­very period, we are entit­led to with­draw from the contract in whole or in part; we must imme­dia­tely reim­burse any conside­ra­tion alre­ady provi­ded by the buyer (in the form of the purchase price payment). The non-avai­la­bi­lity of the service is given, for exam­ple, if our supplier has not deli­vered to us on time, if we have concluded a congru­ent hedging tran­sac­tion, if there are other disrup­ti­ons in the supply chain (e.g. due to force majeure) or if we are not obli­ged to procure in indi­vi­dual cases.
5. Whether we as the seller are in default of deli­very shall be deter­mi­ned in accordance with the statu­tory provi­si­ons. Howe­ver, the prere­qui­site for a delay in deli­very by us as the seller is a remin­der from the buyer. In the event that there is a delay in deli­very, the buyer may claim lump-sum compen­sa­tion for the damage caused by the delay. The liqui­da­ted dama­ges shall amount to 0.5% of the net price (deli­very value) for each comple­ted calen­dar week of delay, but shall not exceed a total of 5% of the deli­very value of the delayed goods. We reserve the right to prove that the buyer has suffe­red no damage or only less damage than the above lump sum.
6. OIur statu­tory rights, in parti­cu­lar in the event of an exclu­sion of the obli­ga­tion to perform (e.g. due to impos­si­bi­lity or unre­ason­ab­leness of perfor­mance and/or subse­quent perfor­mance), shall remain unaf­fec­ted.

F Deli­very, trans­fer of risk, accep­tance, default of accep­tance
1. Deli­very shall be ex warehouse. The warehouse is also the place of perfor­mance for the deli­very and the place for any subse­quent perfor­mance. In the event that the buyer wishes to have the object of purchase sent to another desti­na­tion (sale to desti­na­tion), he shall bear the costs of ship­ment. In the event that nothing has been contrac­tually agreed, we may deter­mine the type of ship­ment (pack­a­ging, ship­ping route, trans­port company) oursel­ves.
2. Unless expressly agreed other­wise, the custo­mer must accept and coll­ect the object of purchase imme­dia­tely after receipt of the writ­ten or verbal noti­fi­ca­tion of comple­tion at our place of busi­ness.
3. Trans­port insu­rance shall only be taken out at the request and expense of the custo­mer.
4. The risk of acci­den­tal loss and acci­den­tal dete­rio­ra­tion shall pass to the buyer upon hando­ver of the object of purchase to the buyer. In the case of a sale by dispatch, the risk of acci­den­tal loss of the object of purchase, acci­den­tal dete­rio­ra­tion of the object of purchase and the risk of delay shall pass to the Buyer upon deli­very of the object of purchase to the forwar­ding agent or carrier. In the event that accep­tance of the object of purchase is contrac­tually agreed, this shall be decisive for the trans­fer of risk. Further statu­tory provi­si­ons of the law on contracts for work and services remain unaf­fec­ted. If the buyer is in default of accep­tance, this shall be deemed equi­va­lent to hando­ver or accep­tance of the object of purchase.
5. In the event that the buyer is in default of accep­tance or our deli­very is delayed for other reasons for which the buyer is respon­si­ble, we shall be entit­led to claim compen­sa­tion from the buyer for the damage incur­red, inclu­ding addi­tio­nal expen­ses (e.g. storage costs). If this is the case, we shall charge the Buyer a lump-sum compen­sa­tion amoun­ting to 15% of the gross purchase price. Proof of higher dama­ges and our statu­tory claims (in parti­cu­lar reim­bur­se­ment of addi­tio­nal expen­ses, reasonable compen­sa­tion, termi­na­tion) shall remain unaf­fec­ted; howe­ver, the lump-sum compen­sa­tion shall be offset against further mone­tary claims. Howe­ver, the Buyer reser­ves the right to prove that we have suffe­red no loss at all or only a signi­fi­cantly lower loss than the above lump sum.

G Reten­tion of title
1. We reserve title to the deli­vered object of purchase until full payment of all our present and future claims arising from the purchase contract and an ongo­ing busi­ness rela­ti­onship (secu­red claims). For the dura­tion of the reten­tion of title, we as the seller shall be entit­led to hold the regis­tra­tion certi­fi­cate Part II for the object of purchase.
2. Until full payment of the secu­red claims has been made, the objects of purchase subject to reten­tion of title may neither be pled­ged to third parties nor assi­gned as secu­rity. The buyer must inform us imme­dia­tely in writing in the event that an appli­ca­tion is made to open insol­vency procee­dings or if third parties seize the objects of purchase belon­ging to us (e.g. seizu­res). If the third party is not in a posi­tion to reim­burse us for the judi­cial and extra­ju­di­cial costs of an action pursu­ant to Section 771 of the German Code of Civil Proce­dure (ZPO), the custo­mer shall be liable for the loss incur­red by us.
3. In the event of a breach of contract by the buyer, in parti­cu­lar in the event of non-payment of the purchase price due, we shall be entit­led to with­draw from the contract in accordance with the statu­tory provi­si­ons and/or to demand the return of the object of purchase on the basis of the reten­tion of title. The demand for return does not at the same time include a decla­ra­tion of with­dra­wal; rather, we are entit­led to merely demand the return of the object of purchase and reserve the right to with­draw from the contract. In the event that the buyer does not pay the purchase price due, we must have unsuc­cessfully set the buyer a reasonable dead­line for payment before asser­ting these rights. This shall only apply inso­far as the setting of such a dead­line is not dispensable under the statu­tory provi­si­ons.
4. Until revo­ked in accordance with G. 4. lit. c to resell and/or process the objects of purchase subject to reten­tion of title in the ordi­nary course of busi­ness. In this case, the follo­wing provi­si­ons shall apply in addi­tion:
a. The products of our objects of purchase crea­ted by combi­ning, mixing or proces­sing shall be subject to reten­tion of title at their full value, wher­eby we shall be deemed to be the manu­fac­tu­rer. In the event that the owner­ship rights of third parties conti­nue to exist in the event of a combi­na­tion, mixing or proces­sing with the objects of purchase, we shall acquire co-owner­ship in propor­tion to the invoice values of the combi­ned, mixed or proces­sed objects of purchase. In all other respects, the same shall apply to the resul­ting product as to the objects of purchase deli­vered subject to reten­tion of title. The purcha­ser also assigns to us for secu­rity purpo­ses such claims against a third party which accrue to him through the combi­na­tion of the reser­ved goods with a property. In this case, we accept the assign­ment.
b. The Buyer assigns to us alre­ady at this point in time in total or in the amount of our possi­ble co-owner­ship share pursu­ant to G. 4. lit. a for secu­rity purpo­ses the claims against third parties arising from the resale of the object of purchase or the product in the amount of the final invoice amount agreed with us (inclu­ding VAT). We accept the assign­ment. The obli­ga­ti­ons of the buyer listed in G. 2. shall also apply with regard to the assi­gned claims.
c. The buyer remains autho­ri­zed to coll­ect the claim in addi­tion to us. As long as the buyer fulfills his payment obli­ga­ti­ons to us, there is no defi­ci­ency in the buyer’s ability to pay and we do not assert the reten­tion of title by exer­cis­ing a right in accordance with G. 3., we under­take not to coll­ect the claim. If we assert the exer­cise of a right in accordance with G. 3., we may require the Buyer to disc­lose the assi­gned claims and their debtors, as well as that the Buyer provi­des all infor­ma­tion neces­sary for coll­ec­tion, hands over the rele­vant docu­ments and informs the debtors (third parties) of the assign­ment. In addi­tion, we shall be entit­led to revoke the Buyer’s autho­riza­tion to resell and process the goods subject to reten­tion of title.
d. In the event that the realizable value of the secu­ri­ties exceeds our claims by more than 10%, we shall release secu­ri­ties of our choice at the buyer’s request.
5. As long as owner­ship has not yet been trans­fer­red to him, the buyer is obli­ged to treat the object of purchase with care. In parti­cu­lar, he is obli­ged to insure it adequa­tely at his own expense against theft, fire and water damage at repla­ce­ment value. If main­ten­ance and inspec­tion work has to be carried out, the buyer must carry this out in good time at his own expense.

H Buyer’s claims for defects
1. If the buyer is an entre­pre­neur (Section 14 BGB), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) BGB, the sale of the object of purchase shall, in devia­tion from the law, take place to the exclu­sion of any warranty for mate­rial defects.
2. This does not affect the rights of the buyer arising from sepa­ra­tely issued guaran­tees, in parti­cu­lar from the manu­fac­tu­rer.

I Other liabi­lity
1. Unless other­wise provi­ded for in these GTCSU, inclu­ding the follo­wing provi­si­ons, we as the seller shall be liable for brea­ches of contrac­tual and non-contrac­tual obli­ga­ti­ons in accordance with the statu­tory provi­si­ons.
2. Within the scope of fault-based liabi­lity, we shall be liable for dama­ges, irre­spec­tive of the legal basis, only in the event of intent and gross negli­gence. In the event of simple negli­gence, we shall be liable, subject to statu­tory limi­ta­ti­ons of liabi­lity (e.g. care in our own affairs; insi­gni­fi­cant breach of duty), only
a. for dama­ges resul­ting from injury to life, body or health.
b. for dama­ges resul­ting from the breach of an essen­tial contrac­tual obli­ga­tion (obli­ga­ti­ons whose fulfill­ment is essen­tial for the proper execu­tion of the contract and on whose compli­ance the contrac­tual part­ner relies and may also rely). In this case, howe­ver, our liabi­lity shall be limi­ted to compen­sa­tion for fore­seeable, typi­cally occur­ring damage.
3. The limi­ta­ti­ons of liabi­lity arising in accordance with I.2 shall also apply to third parties and in the event of brea­ches of duty by persons whose fault we are respon­si­ble for in accordance with statu­tory provi­si­ons. Inso­far as a defect has been frau­du­lently concea­led and a guaran­tee for the quality of the goods has been assu­med, the limi­ta­ti­ons of liabi­lity shall not apply. This also applies to claims of the buyer under the Product Liabi­lity Act.
4. The buyer may only with­draw from or termi­nate the contract due to a breach of duty that does not result from a defect in the event that we as the seller are respon­si­ble for the breach of duty.
5. The Buyer’s right of termi­na­tion (in parti­cu­lar pursu­ant to Sections 650, 648 BGB) is excluded. In all other respects, the statu­tory requi­re­ments and legal conse­quen­ces shall apply.

J Choice of law and place of juris­dic­tion
1. The law of the Fede­ral Repu­blic of Germany shall apply to these Gene­ral Terms and Condi­ti­ons of Sale and the contrac­tual rela­ti­onship between us as the seller and the buyer, exclu­ding inter­na­tio­nal uniform law, in parti­cu­lar the UN Conven­tion on Contracts for the Inter­na­tio­nal Sale of Goods.
2. If the buyer is a merchant within the meaning of the German Commer­cial Code, a legal entity under public law or a special fund under public law, our regis­tered office in An der Sieg­tal­brü­cke 16, 57080 Siegen shall be the exclu­sive and also inter­na­tio­nal place of juris­dic­tion for all dispu­tes arising directly or indi­rectly from the contrac­tual rela­ti­onship. The same applies if the buyer is an entre­pre­neur within the meaning of Section 14 BGB.
3. We are also entit­led to bring an action at the place of perfor­mance of the deli­very obli­ga­tion in accordance with these GTCSU or an over­ri­ding indi­vi­dual agree­ment or at the buyer’s gene­ral place of juris­dic­tion. This shall not affect over­ri­ding statu­tory provi­si­ons (exclu­sive places of juris­dic­tion).

GTCSU — Diet­rich GmbH — commer­cial – used vehi­cles — status 01.04.2024

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