- All offers, purchase contracts and other legal transactions are based exclusively on the following conditions. Sales and other contracts become binding upon us only and on grounds of our order confirmation and the conditions underlying this confirmation. If, in isolated cases, agreements are reached which differ from these conditions, especially if certain characteristics mentioned during negotiations are to be considered as guaranteed, these are only valid if they are included in the order confirmation or have been approved by us in writing. We hereby reject any purchasing conditions made by the customer or conditions underlying a particular order. We are not bound under them, even if they were not explicitly rejected during the conferral of order confirmation. Our conditions are considered to have been accepted at the latest when the goods are accepted. Our offers are subject to change in the sense that they should be considered as an invitation for presenting us with an offer.
- Our prices are understood to have been set from our storage or the dispatch location stated in the order confirmation, as long as there is no explicit agreement to provide pre-paid delivery.
- Payment Terms
- Our invoices are to be paid in full before delivery or by giving their net value in cash to our representative when the goods are handed over. A failure to meet the invoice deadline means that we have the right to add interest, without needing to set a particular deadline and starting from the date of expiry, to the value of regular banking interest for company loans plus commission and costs for borrowing credit. Bills of exchange and cheques are only accepted on account of payment. Cheques are considered payment in cash only if they are sent in time to be redeemed before the end of the payment deadline. Predated cheques will not be accepted as payment. In case of payment via bill of acceptance or trade bill we reserve the right of acceptance. According to the general banking terms and conditions counterfoils can have a running term up to 3 months and must be domiciled at a credit institute in the same location as a regional central bank. We assume the discount charges until the invoice’s date of maturity. After this deadline our banks’ discount rates will be calculated up to the maturity date of the counterfoils. Stamp duties are payable by the customer. The contract partner has a right to withhold or charge for possible demands against us only if his counterclaim is uncontested and due or there exists a legal title against us. Non-compliance with our payment terms, delay or circumstances which are likely to lower credit worthiness result in the immediate maturity of all our demands, including of any bills of exchange with a later maturity date. You give us the right to ask for security or advance payments for outstanding deliveries, to withdraw after a suitable extension from the contract or from still unfinished parts of the contract or to ask for compensation on account of non-fulfilment. We furthermore have the right to prohibit the resale or reuse of goods still subject to title retention and to resume ownership of any objects, excluding any retention rights. Retraction only means a retraction from the contract if we explicitly state this in writing. Any costs incurred on account of retraction are payable by the buyer. The buyer can demand the delivery of goods retracted by us without a declaration of retraction after complete payment of the purchasing price and all other costs. If the buyer does not comply with his duties within a suitable time period we have the right to direct sale of our reserved property, with any proceeds realised going towards our compensation claim. As long as the buyer is in arrears with the fulfilment of his payment duties, we are not obliged to deal with any complaints, spare part orders, etc.
- Title Retention Clause
- All our deliveries are subject to title retention. Property is transferred to the buyer only when he has paid off all obligations arising from our delivery of goods. This holds also if the purchasing price for certain goods stipulated by the buyer has been paid. If the buyer is a retailer he can sell delivered goods that are still within our property only in regular business transactions. If the buyer uses goods still in our possession in his own company he can resell them only with our prior permission. In any case resale is only permissible if our customer’s buyer has not excluded the assignment of the claim from resale or gives his consent subject to the assignment. The buyer is not permitted security transfer or distraint of goods still subject to title retention. The buyer must inform us immediately of any imminent or effective distraints or any other encroachment of our rights through third party actions. If the buyer should be behind in payments of his obligations arising from the delivery of our goods in spite of a reminder, we have the right to demand the immediate return of the delivered goods, to collect the goods from their various locations and take them into our possession, without the buyer being able to raise objections on account of his ownership of the goods. Should the buyer sell the goods delivered by us, he cedes to us all claims arising out of the sale against his customer with all subsidiary rights including his profit margin, until he has repaid all our claims. If our customer is a retailer or has resold the delivered goods as a non-retailer with our approval, he has the right to collect the claims resulting from the sale in his own name in trust for us. However, we are completely free to announce the assignment to the garnishee. The buyer is obliged to provide us with the necessary information for validation of our rights as well as the relevant documents. While we reserve title rights the buyer is obliged to keep the object of purchase in reasonable condition and to carry out necessary repairs immediately and at his own expense if they are not included in the warranty. Furthermore, he must provide access to our representative at any time for visits. As long as we maintain title rights, the buyer must insure any equipment against mechanical breakdown, fire and water damage as well as theft and provide proof on our demand.
- Mass, Weight, Performance etc.
- Documents on offers and order confirmations such as illustrations, weight specifications, dimensions, performance, model, type, a piece of equipment's battery life, as well as on the length and extent of any prior use of used equipment etc are only approximate. They are therefore non-binding as long as they are not explicitly guaranteed in the order confirmation or in an additional written agreement.
- Our goods are, if so agreed or necessary according to our evaluation, packaged according to commercial standards and at the expense of the buyer. Defects in packaging cannot be claimed against us, if packaging was done as is usual with us; the buyer also cannot make any claims on account of any waybill notices such as “delivered insufficiently packaged” or “delivered without packaging” made by the carrier.
- Delivery is not free of charge for the buyer. If there are no other agreements, dispatch route, transportation and protection of our choice are at our option, all liability being excluded. Transport is always at the buyer’s risk. Insurance for breakages is provided at the expense of the buyer, according to our judgment.
- Delivery Times and Delivery Obstacles
- The delivery times presented are to be considered approximates. They are not binding for us. If in exceptional cases a binding delivery time has been agreed upon, it begins with the date of the order confirmation, but not before clarification of all details of implementation. Failure to meet the deadline or agreed date gives the buyer, under exclusion of other claims, only the right to set an extension via registered letter, which must be of at least a month's length, as well as the right to withdraw from the contract after unsuccessful completion of the same. In the event of unforeseen obstacles, which have occurred against our will and which we, despite the diligence due to the particular situation, could not avoid - no matter if taking place at our or a pre-supplier’s site – such as breakdown, delay in the supply of raw materials and spare parts, etc. we have the right to withdraw from the supply contract or to extend the delivery time by the length the obstacle requires. These same rights are conferred to us in the case of strikes or lockouts on our premises, or on the premises of our sub- or pre-suppliers as well as at the transport company. We will immediately inform our customer of such circumstances.
- Complaints and Warranties
- Brand-new equipment
Complaints are to be made immediately and will not be accepted if not presented within 2 weeks of delivery. This is especially valid for defects concerning the external condition and completeness of a delivery. Only those defects which even after careful checking could not be determined within this time-frame can be claimed after the 2-week deadline. However, such a claim must be made promptly within 2 weeks of the defect being discovered. No complaint is valid 6 months after the day the goods left the place of dispatch or after 100 operating hours, if the 6-month deadline has already past. Defects that are the result of normal use or improper use are exempt from this warranty. Furthermore the warranty extends only to the first procurer and expires upon resale by the same. The purchase of equipment from us by a retailer does not count as a primary purchase. We must have the opportunity to determine the claimed defect on the spot ourselves or via a representative. Without our explicit approval the faulty element cannot be changed in any way without loss of warranty. However, we assume responsibility for unusable parts when they can be proven to be the result of errors in production or materials. In this instance we can choose to either replace the damaged parts, which are to be sent to us or to another location carriage paid and free of charge according to our instructions, or replace them with another part free of charge. We have the right to remedy the damage through a workshop named by us or on the spot by a mechanic sent by us. When spare parts, replaced within the warranty and inserted by a mechanic or workshop chosen by us are delivered free of charge, we also carry the work and travel-time expenses for the mechanic, while any travel expenses (e.g. plane, car, train or taxi) are carried by the buyer. Right to nullification of the sale, depreciation or compensation in any form, especially lost profits or refunds of costs to the buyer arising directly or indirectly through acceptance, use or failure of faulty equipment is unacceptable. Warranty claims fall under the statute of limitations one month after rejection of the complaint by us. If a replacement according to the above paragraphs should not be carried out within a suitable time period or turn out to be impossible, the buyer reserves the right to withdraw from the contract, excluding all other claims, after setting an appropriate deadline, which should be of at least two weeks and within which we can still decide to deliver a new replacement part. We are liable for any possible debts made by agents only as according to the prior terms and conditions.
- Used equipment
Used equipment is sold in the state it was in at the closing of the contract or on the agreed delivery date. The buyer has the right and is given the opportunity to examine and test the goods before finalising the contract or before delivery. If he or his representative accepts the goods without complaint, he is accepting the goods in their state at transfer as fulfilling the contract. The same holds if he or his representative – no matter the reason – make only partial or no use of the powers conceded. The above agreement for used equipment is valid as long as we have not agreed upon a warranty for the piece of equipment in question. These warranty terms and conditions are as follows:
Warranty terms and conditions
As long as no regulations are decided upon in the warranty agreement, the following warranty terms and conditions apply
§ 1 Warranty contents
- The seller/warrantor provides a warranty for the buyer which encompasses the functional capacity of the parts mentioned in § 2 No. 1 for the period agreed upon.
- If a part loses its functionality within the warranty period directly and not as a result of a fault in a part with no warranty, the buyer can claim the necessary and expert repair through replacement or restoration of the part. This warranty does not give reasons for claims on annulment (rescission of a purchasing contract) or depreciation (lowering the purchasing price) In the case of bigger warranty-dependent damages the seller retains the right to take back the damaged piece of equipment. In the case of retarction, the purchasing price is refunded. For the duration of use we charge a monthly rent of 10% of the purchasing price (no more than 600% and for no longer than 3 months).
- Repairs that fall under the warranty include testing, measurement and calibration work if it should be necessary in connection with repair of warranty damage, but not including wearing parts or commodities stipulated by the manufacturer. We are not liable for indirect or direct subsequent losses (e.g. transport costs, holding fees, towing fees, disposal costs, compensation for loss of use, secondary damage to parts without warranty).
- The warranty encompasses all parts belonging to the equipment described in the purchase contract, except for parts which are subject to a lot of normal wear and tear, such as tyre material, hard rubber tyres, clutch linings, brake pads, brake discs, brake drums, light bulbs, batteries (three months after delivery of the equipment), hoses, relays, breaker contacts, gas and shock absorbers. Small leakages which do not interfere with functionality are not covered by this warranty. Any software updates also are not part of this warranty.
- The warranty period follows from the warranty agreement.
- The warranty is valid only for the delivery address stated on the purchasing contract. In the case of a change in location any additional travel costs will be added.
§ 3 Warranty exclusion
No warranty exists regardless of contributing causes for damages:
- caused by accidents, meaning events occurring indirectly on account of a sudden external mechanical force.
- Caused by improper, wilful or malicious actions, misappropriation, especially theft, unapproved use, robbery and embezzlement, in the case of indirect effects of storm, hail, lightning strikes, earthquakes or flooding as well as scorching. Fire or explosions, through acts of war of any type, civil war, civil unrest, strike, lockout, confiscation or other sovereign interventions with foreign or accessory parts, which were not authorised by the supplier
- caused by the use of unsuitable operating fluids or operating voltages, for which a third party is responsible.
§ 4 The buyer's responsibilities
The buyer must:
- Allow Mototok International GmbH to carry out maintenance, inspection and service work of the equipment as is recommended by the manufacturer.
§ 5 Assignment transfer and statute of limitations
The buyer has the right to assert all his rights in the warranty on his own behalf towards Mototok International GmbH company.
§ 6 Particular duties of the buyer
- to inform Mototok International GmbH company immediately of any damages.
- to give a representative of the Mototok International GmbH company access at any time to examine the equipment, and to provide the relevant information if requested in order to determine the extent of damage.
- to reduce the amount of damage as much as is possible and in so doing to follow the instructions of the Mototok company.
§ 7 Consequences of a breach of duty
If the buyer breaches one of the duties for which he is responsible, the seller is free of any obligation to perform contained in the given warranty.
- Brand-new equipment
- Place of Performance and Jurisdiction
- Place of performance for deliveries is the respective place of dispatch; for rental equipment returned to us and payments this is Krefeld. Jurisdiction for both types of parts is Krefeld. The same holds for complaints concerning bills of exchange and cheques. For our claims the district court is competent no matter the amount in dispute. However, we can choose to call on the regional court if there is a need for this court’s jurisdiction. In all cases German law applies.
- We provide a 6-month warranty for repairs. Assignments given verbally face-to-face or over the telephone must be confirmed in writing by the buyer. If there is no written confirmation our version of the verbal order (face-to-face or over the telephone) is binding. Accounts are settled according to the hourly rates valid at the time. The service technician must receive acknowledgement on the Repair Form presented by him for the amount of time time worked, as well as confirmation of completion and correct execution of the work performed. We cannot assume liability for any spare parts installed by the buyer. The use of a service technician is made according to our choice from one of our service points or if necessary by an outside company commissioned by us. We are not liable for any secondary damage. If repair and warranty repair are carried out at the same time on the same piece of equipment we will bill you for the labour costs and parts accordingly. Overtime surcharges are as follows: as of 16:30 and on Saturdays we charge 50%extra, and on Sundays and holidays 100%.
- If one or more conditions of a contract including these general terms and conditions should be ineffective, this does not affect the effectiveness of the rest. In such situations the parties replace the ineffective conditions through the effective ones which come closest to the economic intent of the ineffective condition.
- The same process applies in the case of gaps in the contract.
- Changes and additions to the contract must be made in writing.
- For possible necessary official authorisations, in particular export licences, the contract partner is responsible; Mototok International GmbH does not accept any responsibility here.
- Krefeld, March 2010