ATV GmbH & Co. KG
Terms and Conditions of Sale
1. These general terms and conditions are valid for all quotations from the aforementioned company, hereinafter called “the Vehicle Builder” and for all contracts of the Vehicle Builder with the Customer (Buyer or Customer). All agreements between the Vehicle Builder and the Customer must be in writing. Oral collateral agreements do not exist.
2. The Customer is bound to a purchase order for six weeks. The contract is completed if the Vehicle Builder confirms the order in writing within this period. The scope of delivery or performance depends on the particulars in the order confirmation. The Vehicle Builder is however obliged to inform the Customer without delay in the event that it does not accept the order.
3. If the Customer withdraws from the contract after the conclusion of the contract, then the Vehicle Builder may claim for damages in the amount of 20% of the purchase price/contract wage. The damages shall be set higher or lower if the Vehicle Builder proves a greater or the Customer a smaller loss.
4. The Customer authorises the Vehicle Builder to engage in subcontracts and to execute road tests and transfer drives.
5. Transfer takes place at the costs and risk of the Customer.
6. The law of the Federal Republic of Germany applies to these General Terms and Conditions of Business and all the legal relations between the Vehicle Builder and the Customer.
II. Cost estimate
1. Quotations and cost estimates may be binding or without obligation.
2. If the Customer desires a binding price quotation, a written cost estimate is required. In such a quotation, all works are to be listed in detail and listing the respective price. The Vehicle Builder is bound to this cost estimate up to the expiry of six weeks after its issue, unless the cost estimate stipulates a shorter period of obligation.
3. If agreed in the individual case the Customer may be invoiced for the issue of a cost estimate for services.
4. If an order is placed on the basis of the cost estimate, any expenses for the cost estimate are offset against the contract invoice and the total price of the contract may be exceeded only with the consent of the Customer.
III. Prices and Terms of Payment
1. Discount for cash or trade discounts are subject to the contract only if they were explicitly agreed in writing. On the date of delivery, any price increases based on governmental orders or tax increases apportionable in the interim may, in any case, be additionally invoiced to the Customer. Material and labour costs are binding solely for the duration of four months with effect from receipt of the order confirmation. Thereafter increased wage and material costs may be allocated to the Customer.
2. Payment instructions, bills of exchange and cheques are accepted only after special agreement and only in payment of a debt subject to the calculation of all collection costs and discount charges. Transferral and prolongation are also not deemed compliance with the payment conditions.
3. Unless otherwise agreed by way of derogation, the Vehicle Builder is entitled to payment within 10 days from date of invoice. With effect from occurrence of default interest and dunning costs shall be payable in the statutory amount. Assertion of a greater loss is not hereby excluded.
In the case of leased services or services by the Vehicle Builder otherwise financed with borrowed capital the Customer must issue every declaration required for the release of the payment by the financier, for example an acceptance confirmation, at the latest on the date subsequent to the delivery. If the declaration is not issued vis-à-vis the Vehicle Builder but vis-à-vis a third party, the Vehicle Builder shall be simultaneously notified thereof by sending a copy by e-mail or fax. If the Customer fails to meet the obligation to issue the necessary declarations in due time, it shall incur interest on arrears beginning on the 10th day following the day, on which the declaration should have been issued in accordance with the aforesaid provisions, unless the failure to make payment relies on a ground other than the omission to issue the required declaration. Assertion of a greater loss is not hereby excluded.
4. The Customer may offset against the Vehicle Builder's claims only if the Customer's counter-claim is undisputed or a legally valid title exists. The Customer may assert a right of retention only in the amount of the counter-claim claimed by it and also only if this claim relies on the same contractual relationship.
IV. Default of payment
1. If the Customer fails to comply with its payment and insurance duties or the obligations arising from the Vehicle Builder's retention of title or collateral assets or breaches its obligations arising from the Vehicle Builder's retention of title or collateral joint ownership, or if the Customer ceases payment or if insolvency proceedings are opened against its assets or some other measure under the German Insolvency Act is ordered, the entire residual claim of the Vehicle Builder becomes due for payment, even if bills of exchange or cheques with later due dates are in existence or should other respite agreements have been agreed between the parties. If the entire residual claim is not paid by the Customer without delay, its rights of use in the restricted goods expire. The Vehicle Builder is then entitled to demand the immediate surrender or where applicable, the surrender of retention or collateral joint ownership to a third party, to the exclusion of all rights of retention. The Customer shall bear all the costs arising from the change in ownership. The Vehicle Builder is entitled to dispose of the vehicle taken into possession together with its accessories for the best price by private sale, as fulfilment of the Customer's payment obligations. After deduction of the costs, the proceeds shall be offset against the total claim against the Customer and any surplus proceeds shall be paid out to it. The Vehicle Builder is obliged to calculate the vehicle at the estimated value determined by an officially appointed appraiser, if the Customer demands such an accounting procedure, without delay upon surrender of the vehicle.
If the customer fails to meet an obligation to make advance payments despite a reminder, ATV is entitled to withdraw from the contract. ATV will then have the choice of asserting the statutory claims or claiming damages. If ATV claims damages, these amount to 20 % of the purchase price. The compensation can be set higher or lower if ATV proves that the damage was higher or the customer proves that no damage or a lower damage was incurred. It will, however, amount to at least 5 % of the purchase price.
2. An infringement of the retention or collateral joint ownership of the Vehicle Builder also exists, if the Customer breaches its obligations to the third party, retention or collateral joint owners and the latter is entitled to repossession or exploitation of the vehicle.
3. The provisions of points 1 and 2 apply also to hire purchase business with those Customers who are entered in the Commercial Register. In the case of other Customers, the Vehicle Builder can give notice on the crediting of the payment obligation, if the Customer is in default in full or in part with at least two consecutive payment instalments and with at least ten per cent, five per cent for a contract term of three years, of the hire-purchase price and the Vehicle Builder has set the Customer without success a two-week period of grace for the payment of the unpaid amount with the explanation that in the event of non-payment within the period of grace it shall demand the entire balance due. The Vehicle Builder has the same rights, if the Customer falls in full or in part into arrears with the redemption of bills of exchange or cheques. The Vehicle Builder is furthermore entitled to withdraw from the contract on failure to redeem an instalment or a bill of exchange or cheques. In this case the reduced value of the vehicle or of the superstructure is also determined by the estimate of an officially recognised expert appraiser.
4. Against the claims arising from the retention of title, collateral assets and on default of payment the Customer cannot rely on the fact that it requires the vehicle or the superstructure for special reasons, in particular not for the preservation of its trade.
1. Delivery dates or delivery periods, which can be agreed as binding or non-binding, must be specified in writing. Delivery periods begin on receipt of the order confirmation, or if an agreement pertaining to the kind of design, which remains open, is subsequently concluded, they begin at this point in time. If the Customer requires any modification of the delivery item prior to delivery, the delivery period does not run until the expiry of the date of the agreement as to the design; the Vehicle Builder is entitled to adjust the terms of delivery accordingly in response to such subsequent changes.
2. Six weeks after a non-binding delivery date or a non-binding delivery deadline has been exceeded the Customer can demand that the Vehicle Builder delivers within a reasonable period. If no delivery takes place within this period, the Vehicle Builder falls into arrears.
3. In the event that the Vehicle Builder is in arrears, the Customer can set the Vehicle Builder a reasonable period of grace in writing with the notice that it will decline the acceptance of the performance after the expiry of the aforesaid period. After unsuccessful expiry of the period of grace, the Customer is entitled to withdraw from the contract by written declaration or to demand remedy for breach of contract or gross negligence to be determined by it; in these cases entitlement to delivery is excluded. If the Customer has claims for damages, in the case of slight negligence of the Vehicle Builder these are limited to a maximum of 25% of the agreed purchase price. If the Customer is a legal entity under public law, a special fund under public law, or a merchant, which at the time of conclusion of the contract is exercising its commercial or independent professional activity, claims for damages for slight negligence are excluded.
4. If a binding delivery deadline or binding delivery period is exceeded, upon exceeding the delivery deadline of the delivery period the Vehicle Builder shall already have entered into default. However if the Customer is a legal entity under public law, a special fund under public law or a merchant for whom the contract is a part of its trade, in the event of a performance default a reasonable period of grace must first be set for the Vehicle Builder. The rights of the Customer are then determined according to No. V. Section 3.
5. In the event of the inability of the Vehicle Builder or its suppliers through no fault of their own or due to force majeure and other factors beyond the control of the Vehicle Builder, such as public disorder, equipment failure, strikes or lockouts, default of delivery shall not apply. In this case both parties have the right, four months after exceeding the agreed delivery date, to withdraw from the contract without fixing a term.
6. The Vehicle Builder retains the right to make design and form modifications, deviations in the colour shade as well as changes in the scope of delivery, unless the intended appearance of the vehicle and its function are hereby fundamentally changed and provided that the changes are reasonable for the buyer at the same quality standard based on the interests of the Vehicle Builder.
7. The particulars in the descriptions on performance, weights, rate of fuel consumption, operating costs, speeds etc. are to be deemed approximate. This applies both to the vehicle substructure as well as to the vehicle body manufactured by the Vehicle Builder. Insofar as the motor vehicle manufacturer or the Vehicle Builder has needed characters or numbers to designate the order, no rights can be derived from these designations.
1. Within eight days from the arrival of the notification of completion, the Customer has the right to test the vehicle at the agreed acceptance location as well as to carry out a test drive within the limits of conventional road tests of the Vehicle Builder. The costs of a more extensive road test are borne by the Customer. It is regarded as a waiver of the testing right, if the inspection is not carried out within the stated period. Upon vehicle transfer to the Customer or to a person delegated by it the vehicle and the superstructure are deemed to have been accepted and properly delivered. The notice of completion explicitly draws the Customer's attention to these consequences. If, before its acceptance, the vehicle is driven on a road test by the Customer or the delegated person, the Customer is thereby liable for damages resulting to the vehicle, if these were culpably caused by the driver of the vehicle.
2. If after notification of completion the Customer remains longer than fourteen days in arrears of acceptance of the vehicle, the Vehicle Builder is entitled, having set a period of grace of fourteen days, to withdraw from the contract or demand remedy for breach of contract. It is not necessary to set a period of grace, if the Customer seriously and conclusively refuses acceptance or manifestly is also not capable of making payment within this period. If the Vehicle Builder demands compensation in damages, this shall amount to 20% of the purchase price/contract wage. The compensation in damages is determined as higher or lower, if the Vehicle Builder proves a greater or the Customer a lesser loss. This entitlement can be precluded only by written agreement. If the Vehicle Builder makes no use of these rights, it may freely dispose of its other rights over its delivery item without prejudice or in their place deliver within a reasonable period a similar object under the terms of the contract.
VII. Retention of title, transfer by way of security
1. All the objects of purchase remain the property of the Vehicle Builder up until the payables arising from the contract with the Customer have been paid in full. If the Vehicle Builder has delivered only the motor vehicle or trailer superstructure, the retention of title comprises these superstructures, unless they are or become constituent parts of the vehicle.
2. If the Customer is a legal entity under public law, a special fund under public law or a merchant, who at the time of conclusion of the contract is exercising its commercial or independent professional activity, the retention of title shall also endure for all claims which arise in connection with the object of purchase. Furthermore the retention of title vis-à-vis the aforementioned Customer also extends to the claims, which the Vehicle Builder has from its on-going business relations with the Customer. At the request of the Customer, the Vehicle Builder is obliged to relinquish the retention of title if the Customer has irrefutably satisfied all claims made in connection with the object of purchase and has supplied appropriate security for the other claims from the on-going commercial relationship.
3. If the Vehicle Builder delivers superstructures which are connected in such a manner with the substructure and/or the rest of the vehicle that they cannot be removed by detachment of screw and bolt connections, or if it delivers accessories (loading ramp, loading crane, insulations, interior equipment etc.),
a) if the vehicle designated for the assembly of the superstructure is within the retention of title or the collateral assets of a third party: The Customer must ensure that the third party concedes joint ownership of the retention of title or collateral assets to the Vehicle Builder. He must supply a written declaration from the third party. The Vehicle Builder shall receive the sole right of retention or collateral assets when the rights of the third party expire. The Customer has then to ensure that the third party hands over the motor vehicle or trailer document directly to the Vehicle Builder. The Vehicle Builder is entitled to make immediate contact with the third party about the agreement and the subsequent procedure for the retention or joint ownership.
b) if the vehicle identified for the assembly of the superstructure is in the ownership of the third party: the Customer is obliged to assign to the Vehicle Builder the collateral assets on the entire vehicle including superstructure and during the duration of the collateral assets in relation to the Vehicle Builder to use the vehicle solely on loan. The transfer of ownership as security and the agreement of the loan relationship are effective when the vehicle is handed over to the Customer for the purpose of takeover subject to the retention of the motor vehicle or trailer documents
4. In the case of repair, the Customer is obliged to assign ownership as security and for loan use of the vehicle when the repaired vehicle is handed over to it after completion and before settlement in full of the repair costs. The transfer of ownership as security and the agreement of the loan relationship are effective as soon as the vehicle is handed over to the Customer subject to retention of the motor vehicle or trailer documents.
5. As long as retention of title or collateral assets in the Vehicle Builder endure, the sale, pledge or transfer of ownership as security, rental or other transfer of the object of the contract is inadmissible without the written agreement of the Vehicle Builder. If the object of the contract is resold with the consent of the Vehicle Builder before payment by the Customer, on completion of the resale contract the purchase price claim against the third party acquisition of the object of the contract is assigned to the Vehicle Builder. In this case the Customer remains entitled and obliged as custodian of the Vehicle Builder for the collection of the claim arising from delivery or performance. The Vehicle Builder has the sole right to the possession of the motor vehicle or trailer documents during the duration of its ownership. The Customer is obliged to apply in writing to the vehicle registration office for the transfer of the document to the Vehicle Builder.
6. If third parties gain access to the goods subject to retention of title, in particular garnishments, the Customer is referred to the ownership of the Vehicle Builder and the latter must be informed without delay so that the Vehicle Builder can enforce its proprietary rights. Unless the third party is capable of reimbursing to the Vehicle Builder the judicial or extra-judicial costs incurred in this connection, the Customer is liable for this amount.
7. Throughout the duration of the retention of title or collateral assets, the vehicle must be insured by the buyer for third party liability with fully comprehensive insurance, with the provision that the rights arising from the insurance belong to the Vehicle Builder. The Vehicle Builder is also entitled to conclude the insurance policy on behalf of the Customer and on its account. In the case of damage the insurance benefits shall be used in full for the repair of the vehicle and the superstructure. In the event of total damage, the insurance benefits shall be employed for the amortisation of the claims of the Vehicle Builder; any surplus amount shall be paid to the Customer.
8. Throughout the duration of the retention of title or collateral assets, the Customer has the obligation to keep the vehicle in proper condition and to make the required repairs immediately, and apart from emergencies, in the repair shop of the Vehicle Builder or to have them carried out in a repair shop recognised by the Vehicle Builder.
9. Unless built-in accessories, spare parts and assemblies for contract services have become constituents of the object of the contract, the contractor shall retain ownership up to irrefutable settlement in full.
VIII. Extended lien
1. By reason of its claim from a contract for service, the Vehicle Builder has a contractual right of lien on the objects that by virtue of the contract have come into its possession.
2. The contractual right of lien can also be claimed by reason of claims arising from works performed previously, spare parts deliveries and other services, insofar as they are related to the object of the contract. The contractual right of lien applies to other claims arising from the business association, only insofar as they are undisputed or a valid title exists and the object of the contract is the property of the client.
IX. Liability for defects
1. Quality defect claims by the Buyer arising from the delivery of new vehicles, superstructures or vehicle parts expire two years after the delivery of the object of purchase.
2. Quality defect claims of the Buyer arising from delivery of used vehicles, superstructures or vehicle parts expire one year from delivery of the object of purchase.
3. Quality defects claims by the Customer for quality defects arising from contract services expire one year from acceptance of the work.
4. By way of derogation from IX. Nos. 1 and 2, a term of limitation of one year from delivery on the sale of used vehicles, superstructures or vehicle parts applies to new objects of purchase and contract services to the exclusion of any liability for quality defects, provided that the Customer is a legal entity under public law, a special fund under public law or a merchant, which at the time of conclusion of the contract is exercising its commercial or independent professional activity.
5. More extensive claims remain unaffected in the case of fraudulent concealment of defects.
6. Quality defect claims apply to vehicles, which the Vehicle Builder delivers in its own name as well as the vehicle superstructures and accessory installations manufactured by it and repairs performed by it. They are valid also for installed parts that the Vehicle Builder does not manufacture. The Vehicle Builder assigns a claim against the producer of a defect to the Customer for tyres, batteries, electrical parts, hydraulic equipment, v-belts, refrigerating systems and canvas materials for motor vehicles and trailers, provided that the Customer is a legal entity under public law, a special fund under public law or a merchant, for whom the contract forms part of the exercise of its trade. The further circle of customers can make quality defect claims arising from the individual parts cited in the previous sentence against the Vehicle Builder only if these claims are made in the first instance against the producers of the individual parts and the producers do not satisfy these claims within a reasonable period.
7. Quality defect claims must be asserted with the minimum delay after the determination of a defect. The defect remedy must be carried out by the Vehicle Builder itself, unless it informs the Customer explicitly that the work can be carried out by another designated company.
8. The quality defect claims are limited to replacement or repair of those parts, for which there exists a defect in the material or in the contract work. Parts, which are to be replaced, should be sent or presented to the Vehicle Builder. Replaced parts go into its ownership. The costs incurred for removal and installation occasioned by the quality defects and where applicable, costs for the dispatching of parts shall not be charged to the Customer. Additional costs incurred because of parts removed during the repair, which can no longer be re-installed as a consequence of ageing and wear, shall be borne by the Customer.
9. If the reworking fails after a reasonable period, the Customer may demand a reduction of the remuneration or may withdraw from the contract at its discretion. Furthermore the replacement of a direct or indirect loss of the Customer, irrespective of the legal basis, shall not be granted unless the Vehicle Builder acts with culpable intent or gross negligence.
10. For the removal of defects of installed parts, the Buyer can enforce liability for defects based on the order until expiry of the statute of limitations for the delivery item.
11. Liability for defects claims expire
a) if the delivery item or the repaired object has been modified by a third party in a way not approved by the Vehicle Builder,
b) if parts are installed, the use of which the Vehicle Builder has not approved,
c) if the Customer does not follow the instructions of the Vehicle Builder concerning the handling and treatment of the delivery item,
d) if the permissible total weight or the axle load or the payload or chassis load capacity determined by the purchase contract is determined to be in excess of that which is permitted by the relevant provisions of the German Road Traffic Licensing Regulation and if after inspection of the Vehicle Builder a causal connection between these procedures and the defect determined is deemed to exist (where applicable by means of an expert's report, e.g. DEKRA).
12. Natural wear and tear is excluded from quality defects liability. This applies also to damage, storage and corrosion damage, which can be attributed to improper treatment.
13. If the Vehicle Builder denies the presence of a quality defect, the decision shall be made by the Board of Arbitration for the vehicle body and manufacturing industry responsible for the registered office of the Vehicle Builder. If there is no Board of Arbitration responsible for the registered office of the Vehicle Builder, a sworn motor vehicle appraiser makes the decision. If an agreement about commissioning an expert opinion cannot be reached, at the request of the Customer an expert shall decide who is designated by the Chamber of Trade or Board of Industry and Trade competent for the registered office of the Vehicle Builder. If the Arbitration Board or the expert determines a quality defect, the Vehicle Builder shall bear the costs of the decision; failing this the costs shall be borne by the Customer.
14. The previous paragraphs set out conclusively quality defect liability for the services of the Vehicle Builder and exclude other quality defect claims against it.
X. Replacement parts
The Customer is aware that by reason of different manufacturing processes and changes to manufacturing processes differences in the surface quality may arise. If structural replacement parts have been delivered partially coated, under the contract this is only a soft chipping guard primer. This shall apply also, if this primer approximates to the structural shade. The Customer is further aware that damage to the surface of the primer cannot be excluded in transport or during storage. Therefore, both primers, which differ in shade and primers with damaged surfaces are deemed to be as stipulated in the contract and free of defects.
1. If the contractor is required in accordance with the statutory provisions or in accordance with these conditions to bear a loss or damage, which has been caused by slight negligence, the Vehicle Builder shall be liable only for such damage as results from the breach of material contractual duties, unless there is injury to life, limb or health. Liability is limited to the typical damage foreseeable at the time of concluding the contract. Liability exists only in the case of the breach of material contractual duties and is limited to the typical damage foreseeable at the time of concluding the contract. If the damage is covered by insurance concluded by the Customer for the relevant case of loss (with the exception of fixed-sum insurance) the Vehicle Builder is liable only for penalties to the Customer related thereto, e.g. higher insurance premiums or interest penalties up to the date of settlement of the claim by the insurance company. Liability for the loss of money, securities, goods and merchandise and other articles of value, which are not expressly taken into safe custody, together with damage caused by a defect in the object of the contract, does not apply in the case of slight negligence.
2. Irrespective of default by the Vehicle Builder, any liability for fraudulent concealment of the defect arising from the acceptance of a warranty or a procurement risk and in accordance with the provisions of the German Product Liability Act remains unaffected.
3. The personal liability of the legal representatives, vicarious agents and employees of the Vehicle Builder is excluded for damage caused by their slight negligence.
4. Insofar as a legal entity under public law, a special fund under public law or a merchant who at the time of conclusion of the contract is exercising its commercial or independent professional activity, is affected the aforesaid limitation of liability to Point XI. Paras 1 to 3 applies also to claims for compensation in damages on grounds of non-fulfilment, however, only to the extent that compensation for indirect or consequential harm caused by a defect relies on a warranty, which is intended to protect the buyer from the risk of such damage. All liability is limited to damage foreseeable at the time of conclusion of the contract.
5. In each case the liability of the Vehicle Builder in accordance with the Product Liability Act remains unaffected.
6. Passing of the risk in the case of collection by or delivery to ATV.
In the case of collection or delivery of a vehicle by the Vehicle Builder the risk of accidental destruction or accidental deterioration shall pass to the Customer on handover of the vehicles to the freight forwarder/ carrier/ delivery driver. The Vehicle Builder hereby assigns to the Customer any claims against third parties, in particular against the freight forwarder/ carrier. Receipt of a declaration of acceptance is waived.
XII. Partial nullity
If any provision in these Terms and Conditions of Business or any provision in other agreements is or becomes invalid, this shall not affect the validity of any other provisions or agreements.
XIII. Court of jurisdiction
The sole Court of jurisdiction for all present and future claims arising from the business relationship with merchants, including claims arising from bills of exchange and cheques, shall be the registered office of the Vehicle Builder. The same Court of jurisdiction shall apply, if the Customer has no general Court of jurisdiction within Germany, relocates its domicile or usual place of residence out of Germany subsequent to the conclusion of the contract or whose domicile or usual place of residence is unknown on the date of bringing an action.
Status August 2020