General terms and conditions of Humbaur GmbH
The following terms and conditions apply to all offers and purchase and delivery contracts relating to products from Humbaur GmbH as the Seller. Contradictory conditions or conditions from the Buyer that deviate from these terms and conditions of sale and delivery are expressly not recognised. Within the scope of ongoing business relations, these conditions shall also apply for all future offers and purchase and delivery contracts between the Seller and the Buyer. A separate acknowledgement of deviating conditions from the Buyer shall only be effective if Humbaur GmbH has expressly agreed to their validity in writing. The scope of each delivery shall be based solely on the information contained in the written order confirmation. The content of this order confirmation shall form the basis of the entire business dealings. An updated order confirmation shall be made every time the scope is modified. All verbal ancillary agreements and any subsequent amendments to the contract shall only be valid if expressly confirmed in writing by the Seller. The waiver of this form requirement must also be submitted in writing. The information, drawings, illustrations, technical data, weight, dimensions and performance specifications contained in brochures, advertisements, price lists or documents that are part of the offer are only approximate values, unless they are expressly stated as binding in the order confirmation. The Seller shall reserve the right to make changes to the design and shape during the delivery period, insofar as the delivery object and its appearance are not significantly modified. Humbaur GmbH shall be bound to their offer for four weeks, unless alternative agreements have been made. The order signed by the Buyer is a binding offer. The purchasing contract shall be concluded if the Seller has confirmed to the Buyer in writing that they have accepted the offer of the purchase object described in greater detail within four weeks or have delivered the purchase object. The Seller shall be entitled to correct obvious miscalculations or mistakes in the price quotation or product description at a later point in time.
The Seller shall only make available their plans, drawings, calculations, photos, illustrations, logos or other documents in compliance with their ownership rights and copyrights. Transfer to third parties shall only be allowed if the Seller has expressly consented to this in writing beforehand.
Special vehicles or custom productions are vehicles that are not included in the current price lists in this version, that represent irreversible productions, that have their colouring completed according to customer specifications or are individual mass productions.
The respective formulations for "Buyer" and "Seller" are gender-neutral in use and do not portray any disadvantage to one or the other gender.
The prices named by the Seller in the order confirmation are binding factors. All prices according to the currently relevant price list are ex works and exclude packaging, transportation charges, postage, insurance and other delivery costs and are without letter/registration costs. All prices are displayed plus the applicable statutory VAT on the day of invoicing. The Seller shall reserve the right to change its prices within the scope by introducing cost reductions or increases due to "collective agreements" for wages, or changes for operating taxes, or for energy such as electricity or gas, or changes in the cost of materials such as aluminium, steel, rubber, PVC or wood. This shall be verified to the Buyer by the Seller on demand. All ancillary charges, public levies, as well as any new taxes, shipping, etc. or their increases, which directly or indirectly affect the delivery or make the delivery taxable, shall be borne by the Buyer, unless there are mandatory legal provisions in place that contradict this. The prices stated in the Seller's offer shall apply on the condition that the order data based on the submission of tenders remains unchanged and is confirmed by the Seller in writing; in the case of orders and delivery to third parties, the Buyer shall be classified as the client unless expressly agreed otherwise.
III. Terms of payment
Unless stated otherwise in the order confirmation, the purchase price for purchase items shall immediately be due in advance upon notification that the delivery item is ready for delivery, within ten calendar days at the latest, but usually before collection/delivery of the delivery item and without discount deduction in each case.
This shall apply in particular to each initial order. Invoices can be issued in writing via post or fax, as well as electronically. This type of invoice can be both an advance invoice and a final invoice.
All payments shall be made directly to the Seller; all payments to the representative or other persons are at the risk of the payer. The payment has ultimately been made if the Seller has the full invoice amount on the due date. Cheques and any other payment methods shall only be accepted on account of payment and not as actual payment. If two instalments from the agreed instalment payment from the Buyer are delayed for longer than 10 calendar days, the total remaining purchase price shall be due upon payment. The remaining purchase price shall be subject to an interest rate of 9% above the respective base interest rate from the due date, in accordance with Section 288 of the German Civil Code.
The Buyer shall only be entitled to offset with a claim that is undisputed or legally valid or to exercise a right of retention.
A discount deduction shall be strictly excluded. If a discount deduction is granted by individual agreement, a discount deduction shall only refer to the invoice amount excluding packaging, transportation charges, postage, insurance and other shipping costs and letter/registration costs. A discount deduction shall only be possible if all due invoice items have been settled in full at the time that the discount deduction is used. Any unauthorised discount deductions made shall be refunded to the Seller.
The Seller shall have the right to withdraw from the contract, if, following the conclusion of the contract, they become aware of circumstances relating to the economic conditions of the Buyer, which the Seller views as no longer sufficiently safeguarding their rights. In this case, the Seller shall also be entitled to demand advance payment or the provision of securities, withhold goods not yet delivered or in the case of delivery, retain or demand back letters or discontinue further work. If the Buyer rejects an advance payment or security deposits, the Seller shall be entitled to withdraw from the contract and/or demand compensation after the fruitless expiry of a grace period of 14 days. These rights shall be available to the Seller if the Buyer is delayed with the payment for deliveries, which are based on the same legal relationship. The Seller shall be expressly entitled to a retention of title for delivered, but not yet paid goods as well as to a right of retention for paid, but not yet delivered goods.
In the event of a delayed payment, a default interest rate of 9% over the current base interest rate shall be paid in accordance with Section 288 of the German Civil Code. The Seller shall also be entitled to demand payment of a base fee of 40 euros in the case of any delay on the part of the debtor, if this is not a consumer. The enforcement of further damages caused by delay is thereby not excluded. Several buyers shall assume joint and several liability.
In the case of special vehicles, custom productions or vehicles that are changed or newly built at the special request of the Buyer, the following shall apply: 25% deposit from the net value of the goods after receipt of the order confirmation, production only after receipt of payment, final payment prior to delivery or pick-up.
IV. Retention of ownership
All delivered goods shall remain the property of the Seller until all claims made against the Buyer by the Seller have been paid in full. This shall also include all claims from current accounts, which are currently or, in future, due to the Seller from the Buyer. For the duration of the retention of ownership, the Seller shall have the right to ownership of the registration certificate part II (vehicle registration document). The Buyer shall only be entitled to resell in orderly business. The Buyer shall hereby assign their claims from the resale to the Seller. The Seller shall hereby accept the assignment. At the latest in the event of delayed payment, the Buyer shall be obligated to name the debtor of the transferred claim as part of a guaranteed right to information.
In the event of the treatment or processing of goods delivered by and in the property of the Seller, the Seller shall be viewed as the manufacturer in accordance with Section 950 of the German Civil Code and shall retain ownership of the products at each stage of processing. If third parties are involved in the treatment or processing, the Seller shall be entitled to a co-ownership share of the invoice amount of the reserved goods. The property acquired in this way shall be classified as reserved property. If third parties have access to the reserved goods, the Buyer must make these third parties aware of the Seller's ownership and inform the Seller without delay. Costs and damages shall be borne by the Buyer.
The assertion of the right of retention shall then only apply as a withdrawal from the contract if the Seller expressly declares this in writing. The Seller shall reserve the right to withdraw from the contract under the condition that there is an insolvency application. The Buyer shall be obligated to issue all delivered items before opening insolvency proceedings.
In the case of transactions with companies, the delivery obligation shall be subject to correct or timely self-delivery unless the incorrect or delayed delivery is the fault of the Seller.
Delivery periods and dates shall only be considered approximate, unless the Seller has expressly provided written confirmation that they are binding. The delivery period shall begin with the day that the order is accepted or that the order confirmation is received, but not before the complete clarification of all execution details and the timely fulfilment of all obligations of the Buyer, such as the payment of down-payments in accordance with III at the end. Fixed-date transactions shall be excluded. In the case of sales ex works, the delivery periods and dates shall be considered complied with if the goods leave the factory within the delivery period or on the delivery date. The delivery period shall be considered satisfied with the timely notification of readiness for shipment, if dispatch is not possible through no fault of the Seller's. The delivery period shall be extended appropriately in the event of force majeure, labour disputes, unrest, authoritative measures, the absence of deliveries from supplies and other unforeseeable, unavoidable and severe events for the duration of the disruption. The agreed delivery period shall be extended—irrespective of the Seller's rights arising from the Buyer's default—by the period that the Buyer is delayed with their obligations from this or another transaction. The expiry of specified delivery periods/dates shall not release the Buyer, should they wish to withdraw from the contract or demand compensation due to non-fulfilment, from setting an appropriate, general grace period of four weeks to render the service and from declaring that they will reject the service after the period has expired. If there is only slight negligence on the part of the Seller, the compensatory damages for a covering purchase or substitute performance shall be limited. Claims for damages due to non-fulfilment or delayed performance shall be excluded for contracts with entrepreneurs. For operational reasons, the Seller shall be entitled to reasonable partial deliveries and partial invoices; the Buyer shall not be entitled to reject partial deliveries.
In accordance with the Packaging Ordinance, transport-related and all other packaging shall not be taken back by the Seller. The Buyer shall ensure the proper disposal of packaging at their own expense.
VI. Conditions of acceptance
1. If the Buyer withdraws from the contract after conclusion of the contract and before goods production, the Seller shall be entitled to demand 15% of the purchase price as compensation, whereby the right to assert further damages shall remain reserved. If the Buyer withdraws from the contract after conclusion of the contract and during goods production, the Seller shall be entitled to demand 20% of the purchase price as compensation; for custom productions or special vehicles, the compensation shall amount to 50% of the purchase price, whereby the right to assert further damages shall remain reserved.
2. If, after notification of the completion, the Buyer remains delayed with the acceptance of goods, fulfilment of their payment obligations or provision of any agreed securities for longer than ten calendar days, the Seller shall be entitled to withdraw from the contract or demand compensation due to the non-fulfilment after setting a grace period of 14 calendar days. In this case, the Seller shall be entitled to demand at least 15% of the purchase price as compensation; in the case of custom or special vehicles, the compensation shall amount to 60% of the purchase price, whereby the right to assert further damages shall remain expressly reserved.
3. For the period that the Buyer is delayed with the acceptance of the goods, the Seller shall store this good for the Buyer at their own risk under the express agreement of an exclusion of liability. The Seller shall be entitled to charge the Buyer appropriate demurrage of at least EUR 20 (twenty) per item per day from the 11th calendar day (see Point 2); the Buyer shall be obligated to pay this invoice before actual collection.
4. The Buyer shall retain the right to demonstrate that the violation of contract attributed to them did not lead to any or any major damages or to any depreciation or that losses arising from the Seller are significantly lower than the previously mentioned rates.
VII. Delivery, place of performance and transfer of risk
1. The delivery shall, in principle, take place directly from the manufacturer's works in Gersthofen (place of performance) and with the simultaneous transfer of risk of accidental loss or deterioration to the Buyer, as soon as the Buyer is notified (date of notification) of the readiness for delivery or acceptance ("notification of availability"). The Buyer shall be obligated to collect the delivery item within three working days of receiving the notification of availability.
Any shipping desired by the Buyer shall be done in their name and at their own expense, always ex manufacturer's works and exclusively at the Buyer's risk. The Seller shall not assume any warranty arising from the shipping conditions. The Buyer shall be entitled to arrange transport insurance at their own expense.
2. Self-collection by the Buyer shall only be possible upon prior agreement. The Buyer shall receive a collection voucher, which must include the name of the person authorised for the collection. At collection, this person must present the appropriate papers. This person shall be entitled to submit explanations for the acceptance of the goods in the name of and on behalf of the buyer, and in particular, to proper acceptance.
3. In accordance with the Packaging Ordinance, transport-related and all other packaging shall not be taken back by the Seller. The Buyer shall ensure the proper disposal of packaging at their own expense.
1. For the quality of the processed material, the design and performance of purchased goods, the Seller shall provide the first customer with a warranty lasting 24 months from transfer of risk for newly manufactured car trailers of up to 3.5 tonnes. For newly manufactured trailers with pressure brakes, the Seller shall provide the first customer with a warranty lasting 12 months from transfer of risk, as long as the customer is a businessperson, a legal person governed under public law or a special fund under public law. For used goods, display vehicles, demonstration vehicles or bargain market offers, any kind of warranty shall be excluded, as long as the customer is a businessperson, a legal entity governed under public law or a special fund under public law. In the event that the consumers are the first customers, the statutory regulations shall apply. The place of performance for the Seller's warranty shall be Gersthofen.
2. Complaints or defects due to recognisable, incomplete and incorrect delivery or potential transport damages shall be noted in writing on the consignment note without delay, at the latest upon collection of the goods or delivery after reception of goods and shall be notified to the Seller in writing. Defects that cannot be discovered within this period even after the most careful inspection must be reported in writing immediately after discovery. In the case of commercial negotiation between traders, Sections 377 and 378 of the German Commercial Code shall remain unaffected. Notifications of warranty claims shall be made using the respective entry form provided by the Seller.
In the case of justified complaints, the Seller shall first be obligated to rectifications (a maximum of 3 attempts) and/or replacement delivery according to their choice, excluding other claims. In the event that the defect is rectified, the Seller shall be obligated to bear the necessary expenses caused by the seller, in particular for labour and material costs caused by the Seller. The shipping of parts for default correction shall take place at the instigation of the Seller and be exclusively carried out by traders or factories selected by the Seller. The transportation costs of the Buyer to/from the place of performance shall not be assumed by the Seller; the Buyer waives the right to their assertion.
The Buyer shall be obligated to issue the defective parts to the Seller or allow for collection by the Seller.
3. In the case of delayed, omitted or failed repairs (a maximum of three attempts) or replacement delivery, the Buyer shall be entitled to demand a reduction of the remuneration or to withdraw from the contract. The replacement deliveries and repairs shall be subject to the same guarantee as the original delivery object. Technical modifications to the design or shape, as well as deviations in the colour or colour shade shall not constitute any defects, as far as these are reasonable for the Buyer, taking into consideration the Seller's interests.
Claims for defects shall, in principle, not exist in the cases of merely insignificant deviations from the agreed quality; merely insignificant impairment of usability; non-compliance with prescribed maintenance intervals or with service intervals; normal wear and tear or damages arising from incorrect or negligent treatment, excessive strain of unsuitable equipment or special external influences after transfer of risk that are not set out in accordance with the contract.
However, the warranty shall only exist until the end of the warranty period for the original object, provided it is not covered by any statutory regulation. Notices of defects shall not release from the obligation to comply with agreed payment obligations. In all cases, the assurance of features shall require the written declaration of the Seller and confirmation.
4. The Seller shall only accept parts not manufactured by the Seller themselves with a warranty, whereby the Seller is provided with a warranty from the manufacturer's works for these parts, and primarily only with the relinquishment of these warranty rights to the Buyer.
5. The warranty assumed by the Seller shall become void if improper repairs are made to the delivered item by themselves or by a third party, or it is modified by the incorporation of parts of foreign origin and the damages are causally related to the repairs or modifications carried out. There shall be no claims for damages from the resulting consequences. The warranty shall also be excluded if a breach of the permissible total weight, the axle loads, the usable load underlying the delivery contract or chassis carrying capacity according to the relevant provisions of the road traffic regulations is determined. Normal wear and tear and damages that are attributed to negligent and/or improper treatment shall be excluded from the warranty.
6. Colour deviations in paintwork, as well as colouring of all kinds of parts and canvas covers as well as digital prints in the technically permissible and technically related scope shall not constitute defects. In relation to the introduction and adjustment of REACH-compliant colours and production methods, it will not be possible to assume any warranty for the colour fidelity of paintwork and colourings of parts of any kind and canvas colours, as well as digital prints on new vehicles against vehicles that have already been delivered.
The Seller shall only be liable for damages that are caused by deliberate or grossly negligent action, and if essential contractual obligations are infringed upon, as far as the accomplishment of the contractual purpose is at risk, if assured features are missing and in the event of compulsory liability in accordance with product liability laws. In the event of culpable breaches of essential contractual obligations, liability shall only be assumed for contractually typical, foreseeable damages.
The same principles shall apply for the liability of the subcontractors and vicarious agents of the Seller.
An exclusion or limitation of liability shall not apply for damages resulting from injury to life, body or health that are due to a negligent breach of duty by the Seller.
The Seller shall not be liable for compliance with any country-specific demands for the final approval of the vehicle in the Buyer's country of origin.
X. Leasing and hire purchase
1. If and to the extent that Humbaur GmbH has agreed to a new purchase contract with a leasing association as part of a lease, or with a finance company as part of a hire purchase by the customer, in relation to an existing purchase agreement with a customer and at the request of the customer at the time or at a later point in time, the following shall apply:
2. The agreement shall be made exclusively with the customer with regard to the existing purchase agreement under the condition precedent that the new purchase agreement with the lessor/finance company is fully effective. Otherwise, the previous purchase agreement between the customer and Humbaur GmbH shall remain with unchanged conditions. This original purchase agreement with the customer shall only be cancelled once the new purchase agreement with the lessor/finance company has been processed in full and paid.
3. If and to the extent that the lessor/finance company demands an advance payment to be made by the customer as a first instalment, or the payment of the sales tax on the purchase price in advance to Humbaur GmbH or to the lessor/finance company as a prerequisite for payment of the purchase price, the customer shall be obligated towards Humbaur GmbH to render this payment immediately or within the set periods.
4. If and to the extent that the lessor/financing company demands a declaration of acceptance/handover certificate signed by the customer as a prerequisite for payment of the purchase price, the customer shall be liable towards Humbaur GmbH to sign and send back this declaration/certificate and the other requirements from the leasing association accordingly to the lessor and return a copy to Humbaur GmbH if the purchase object does not display any defects immediately and at the latest 3 days after the vehicle has been completed and the customer has received the handover certificate/declaration of acceptance. The customer shall receive the opportunity to examine the vehicle for lack of defects.
5. If the customer fails to fulfil their obligation or does not do so in a timely manner according to Point 1.3 or Point 1.4, or the lessor/finance company withdraws for reasons beyond the control of Humbaur GmbH, the following shall apply:
5.1. If the lessor withdraws from the leasing entry/the finance company withdraws from the hire purchase for reasons within the customer's control, particularly because the customer violated their obligation according to Point 1.3 or Point 1.4, the original contract between the customer and Humbaur GmbH shall once again come into effect due to the elimination of the condition precedent.
5.2. If the customer is delayed in their obligation according to Point 1.3 by more than seven days, they shall, in principle, be joint and severally liable for the purchase price claim along with the lessor.
5.3. The right of Humbaur GmbH to additionally demand compensation from the customer due to a violation in accordance with Point 1.3 shall remain unaffected.
XI. Replacement parts
The provisions in Figures I to IX of these terms and conditions shall also apply for replacement parts with the following supplements:
1. Replacement parts from the usual replacement parts offered by the Seller shall be sold against prepayment or on account. The scope of delivery shall include packaging, plus delivery costs.
2. The delivery must be checked immediately. In the event of a return delivery, a special return delivery note must be attached to the goods; this shall be sent by the Seller on demand. Returned goods sent to the seller that are not prepaid, or goods without a return delivery note, shall not be accepted by the seller.
3. In the event of incorrect orders of replacement parts from the usual supplier of replacement parts to the Buyer, the Buyer shall be obligated to return the goods to the Seller in an undamaged and carefully packaged state at their own expense. The Seller shall be entitled to additionally demand processing costs of 10% of the net value of the goods for the administration and storage expenses arising in this case.
4. In case of the incorrect delivery of replacement parts from the usual replacement parts supplier to the Seller, or in the case of justified warranty claims for replacement parts, the Buyer shall be obligated to report this immediately and to store the goods carefully. The Seller shall be entitled and obligated to have the goods picked up from the Buyer at their own expense.
5. For properly delivered special parts, special plans or production parts made at the Buyer's request, there shall be no recall by the Seller.
6. If the dispatch is performed as overnight shipping without a depot at the express wish of the Buyer, the Buyer alone shall bear the increased risk from the point of transfer of risk.
7. For the period of the delay with the payment of the requested advance payment within a set period, or the acceptance of replacement parts by the Buyer, the Seller shall store these goods for the Buyer at their own risk under the express agreement of an exclusion of liability: The Seller shall be entitled to charge the customer an appropriate storage fee of at least EUR 4 per item per day.
XII. Data protection
1. Processing of your data
During the initiation, conclusion, processing and reprocessing of a purchase contract, data from the Seller shall be collected, saved and processed in accordance with the statutory provisions. When visiting the website of the Seller, the current IP address being used by the Buyer's computer, the date and time, browser type and operating system of the computer as well as the pages viewed by the Buyer shall be logged. However, inferences based on personal data shall not be possible and not be intended.
The personal data that the Buyer shares with the Seller, for example, during an order or by email (e.g. name and contact details) shall only, with the stated consent of the Buyer, be processed for correspondence with the Buyer and for the purpose for which the Buyer has provided the data to the Seller.
The Buyer shall agree to the Seller obtaining and evaluating corresponding credit information about the Buyer in conjunction with the order of goods.
The Seller shall only otherwise forward the Buyer's data to shipping companies contracted with the delivery as far as is necessary for delivery of the goods. For the settlement of payments, the Seller shall forward the payment information of the Buyer to the credit institution contracted with the payment.
The Seller assures that this personal data shall not otherwise be forwarded to third parties unless the Seller is legally obligated to do so or the Buyer has expressly consented to this beforehand. As long as the Seller makes use of third-party services for the execution and settlement of processing, the provisions of the GDPR, the Federal Data Protection Act and the Telemedia Act shall be complied with.
In principle, the data shall not be used for advertising purposes or sending newsletters. Direct marketing through personal data shall only be possible with the prior expressed consent of the Buyer; the Buyer shall be entitled to object to the processing in writing at any time free of charge.
2. Duration of storage
Personal data shared with the Seller by the Buyer via their website, online shop, online sales portals such as mobile.de and social media such as Facebook shall only be stored until the purpose for which this data has been entrusted to the Seller is fulfilled. Insofar as storage periods relating to commercial and tax law must be complied with, the duration of the storage of certain data may amount to ten years.
3. The Buyer's rights
Should the Buyer no longer agree to the storage of personal data or if this has become improper, the Buyer shall be entitled to revoke the permission declared at any time without providing a reason. The revocation shall be sent to the Seller in writing (Humbaur GmbH, Mercedesring 1, 86368 Gersthofen). The Seller shall then arrange to delete, correct or block personal data within one month, as far as they are technically able and using the technologies available to them. On written request, the Buyer shall receive information about all personal data that the Seller has saved concerning the Buyer, its processing and its use free of charge. The Buyer shall be entitled to demand the correction or completion of incomplete personal data from the Seller in writing. The Buyer shall also be entitled to demand the deletion of relevant personal data in writing. The Buyer shall have the right to complain to the supervisory authority regarding the handling of their personal data.
XIII. Place of performance, contract language, court of jurisdiction and amendments to General Terms and Conditions
1. All legal disputes arising from the contractual relations between the parties shall be governed under German law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Depending on the legal threshold between the amounts, the Local Court of Augsburg or the District Court of Augsburg shall be agreed and responsible as the court of jurisdiction.
2. In addition, Gersthofen shall expressly apply as the place of performance for all deliveries and services as well as the performance of any default correction.
3. The German language is considered a recognised official language of the EU, both for the interpretation of texts and the contract language itself.
4. The Seller is entitled to made editorial changes to the text of the General Terms and Conditions. The Buyer shall waive any notice information related to this. In the case of larger textual changes, the Seller shall inform the Buyer before the amended General Terms and Conditions come into effect.