Management board members:
Lothar Holder (CEO), Rainer Auerbacher,
Friedrich Hesemann, Hubert Schaller
Chairman of the supervisory board: Hans-Joachim Boekstegers
Headquarters and register court: Memmingen
Tax code: 138/115/50 722
Turnover code: DE 812882017
Responsible according to § 5 TMG:
(address see above)
Technical implementation of the website:
mpunkt GmbH - digital experts
General Terms & Conditions (Sale)
1. Scope of application
1.1 These General Terms & Conditions (Sale) (hereinafter “GTS”) govern all business relations between Goldhofer Aktiengesellschaft or Goldhofer Airport Technology GmbH (hereinafter “Seller”) on the one hand and the Purchaser on the other. The GTS only apply if the Purchaser is a merchant (§ 14 of the Civil Code (Bürgerliches Gesetzbuch - BGB)), a legal entity under public law or a public-law special fund within the meaning of § 310 (1) sentence 1 of the Civil Code. All of the Seller’s offers are addressed only to businesses (commercial users) and/or dealers. The Seller does not enter into agreements with consumers within the meaning of § 13 of the Civil Code.
1.2 The GTS apply exclusively, and the Purchaser’s deviating, opposing or supplementary general terms and conditions, if any, do not apply even if the Seller does not specifically object to their applicability on a case-by-case basis.
1.3 The Purchaser may purchase the Seller’s products (hereinafter also referred to as “Objects of Purchase”) using different distribution channels: on the one hand, by entering into a contract on the Seller’s Internet page www.e-shop.goldhofer.com (hereinafter referred to as “Online Shop”), and on the other, by way of any and all of the contracts entered into by the Seller and the Purchaser by other means through the Seller’s staff authorized to effect closings (hereinafter referred to as “Closing Outside Online Shop”). The GTS apply to all closings.
1.4 Individual contracts entered into with the Purchaser on a case-by-case basis invariably take precedence over the GTS, and the terms of such contracts are set forth in a written agreement or written confirmation by the Seller.
2. Closing Outside Online Shop
2.1 All of the Seller’s offers outside of the Online Shop are subject to change and non-binding unless specifically designated as binding in nature.
2.2 To submit an offer for a Closing Outside Online Shop, the Purchaser transmits an order to the Seller in text form, at a minimum.
2.3 The Purchaser is bound by its order for a period of four weeks, such period to be shortened to two weeks for Objects of Purchaser that the Seller has “in stock.” The purchase agreement is deemed to have been executed if the Seller confirms the order or effects delivery within the applicable period [in text form, at a minimum] (order confirmation).
3. Closing in Online Shop
3.1 As a rule, the products’ representation in the Online Shop amounts to legally non-binding offers and serve the purpose of soliciting an offer (invitatio ad offerendum).
3.2 Use of Online Shop
For the use of the Online Shop (i.e., to complete orders), the Seller provides the Purchaser with a customer account, which the Purchaser must then use to set up separate user accounts for any staff authorized to complete orders in the Seller’s Online Shop. In the registration form, the Purchaser enters its name and address, along with the personal data of its staff authorized to complete orders with the Seller (hereinafter also referred to as “Users”), including first and last names, email address and telephone number. Finally, log-in data is to be provided – i.e., a log-in email address as well as a password selected by the Purchaser (hereinafter also referred to as “Log-In Data”).
A confirmation email containing an activation link is then sent to the Purchaser’s staff. The registration process is complete once such activation link found in the confirmation email has been clicked, which enables Users to log in using their Log-In Data.
When registering, the Purchaser is obligated to provide accurate and complete information for itself as well as any User, and it will communicate any changes to such information without delay. Only the Purchaser bears liability for inaccurate information and the resulting consequences. As a rule, user accounts are reserved for use by authorized staff, and the Purchaser must procure that neither the accounts nor the Log-In Data are put to unauthorized use.
The Purchaser will further procure that Log-In Data is held in confidence. In the event that the Purchaser or a User learns of any instance of unauthorized use of Log-In Data, they must promptly notify the Seller, which in such cases may block access to the customer account. To regain access, the Purchaser must submit a written application.
3.3 The Online Shop provides for an electronic order process for the submission of an offer to close, under which the Purchaser selects products from the Seller’s range of offerings and gathers them in a so-called shopping cart by clicking on the button “Add to Cart.” Activating the button “Place Order” conveys a legally binding offer to enter into a purchase agreement for the products in the shopping cart. Prior to finalizing the order, the Purchaser may view and change the data at any time. However, the offer may only be submitted and communicated once the Purchaser has accepted these GTS by clicking on the button “To finalize your order, you must approve our GTS,” thereby incorporating the terms into its offer.
The Seller then sends the Purchaser an automatic email confirming receipt and detailing the Purchaser’s order, which the Purchaser may print using the “Print” function.
The purchase agreement is not already entered into upon the delivery of the confirmation of receipt; such confirmation merely documents the Seller’s receipt of the Purchaser’s offer. Instead, the transaction becomes binding upon the Seller’s dispatch of a confirmation of the contract by email (order confirmation) or the products’ delivery. The Seller is entitled to accept the offer to close inherent in the offer within three business days. In the event that the Seller declines the offer to close, or if it fails to accept it within three business days, no contract is concluded.
4. Transfer of Purchaser’s rights
The transfer of the Purchaser’s rights under the contract is subject to the Seller’s written consent.
5.1 The price of the Object of Purchase is stated net ex works and does not include statutory sales tax, if applicable, packaging, customs duties (for exports) as well as fees or other public dues.
5.2 For orders placed in the Online Shop, any applicable delivery and shipment costs are represented as flat shipping rates, which can be viewed by clicking on the note “Plus Shipping” found directly in the offer, and are further displayed as part of the electronic order process. Packaging costs are already included in the flat shipping rate displayed. By contrast, custom duties (for exports) as well as fees and other public dues are not included therein and are stated separately as applicable.
5.3 The Purchaser is obligated to produce for the Seller such records as may be necessary to establish that deliveries are exempt from sales tax, and provide any related assistance (entry certificate or equivalent).
6. Payment and security
6.1 For Closings Outside Online Shop, the purchase price as well as payments for ancillary services (total price) are due and payable immediately upon delivery and/or acceptance and invoice receipt. The Seller is entitled to insist on advance payment in an adequate amount, and it need not complete the order prior to receiving such payment. Any agreed deadline for completion is postponed by the span of time until receipt thereof. In cases of orders placed by purchasers domiciled or with registered offices abroad, and whenever there is reason to suspect a risk of non-payment, however, the Seller reserves the right, even in the context of an ongoing business relationship, to effect full or partial delivery only against advance payment in full. The Seller will communicate such reservation with its order confirmation, at the latest, and full payment in advance is then required before delivery is made. For this purpose, money orders, bills of exchange and checks are accepted only conditionally and against reimbursement of all related expenses.
6.2 For closings in the Online Shop, the Purchaser may pay the purchase price plus flat shipping rate (total price) on account, by credit card, in advance or cash on delivery, although the Seller reserves the right to rule out certain means of payment. To such extent, some methods of payment may be separately agreed or ruled out in coordination with the Purchaser. If payment is made by credit card, the account is typically debited within 72 hours of order completion. When payment is offered in advance, the Purchaser will be provided with the Seller’s account information as part of the request for payment.
6.3 The Purchaser may adjust the Seller’s claims by its own claims only if and to the extent that such counter-claims are undisputed or have been effectively established; it may assert a right of retention only insofar as it is based on claims from the same contractual relationship and the claim in question is undisputed or has been effectively established.
6.4 At the time of or following the closing, the Seller may demand that the Purchaser provide adequate security (e.g., downpayment, bank guarantee, confirmation of financing, leasing agreement) for the purchase price.
6.5 In the event that no security has been provided within ten days of the Seller’s demand, the deadlines according to items 7.2, 7.3 of the GTS are moved accordingly by the duration of such delay.
7. Delivery, default in delivery and availability of goods
7.1 The Seller will provide Objects of Purchase for pick-up at its plant.
7.2 For Closings Outside Online Shop, delivery dates and deadlines are set in text form, at a minimum, and may be agreed to be binding or non-binding in nature. A delivery period commences upon the closing. Delivery dates and deadlines are deemed to have been observed so long as the notification signaling readiness for shipment is issued in time. In the event that the Purchaser fails to supply the information needed to complete the order, any applicable delivery date or deadline is moved or extended by an adequate span of time.
7.3 For closings in the Online Shop, the Objects of Purchase are not supplied until after the purchase price has been paid, except for orders subject to cash on delivery. In the event that cash on delivery has been agreed for payment, the Objects of Purchase are provided within three business days of the closing. Insofar as the parties have arranged for delivery of the Objects of Purchase, the Seller will typically ship them within three business days of its receipt of payment, at the latest, except for orders subject to cash on delivery, unless the product description indicates otherwise as to the availability of the Objects of Purchase. In the event that cash on delivery has been agreed for payment, shipment is effected within three business days of the closing unless the product description indicates otherwise as to the availability of the Objects of Purchase.
7.4 Six weeks prior to the lapse of the agreed non-binding delivery date or deadline, at the earliest, the Purchase may call on the Seller to effect delivery (reminder notice). This period is shortened to two weeks for products that the Seller has in stock. In the event that a binding delivery date or deadline is missed, the Seller finds itself in default as soon as such date or deadline has lapsed.
7.5 In the event that the Seller is in default with a delivery or service, or if it becomes unable, for any reason, to effect a delivery or service, the Seller’s liability for damages is capped according to item 14 of the GTS.
7.6 Force Majeure (unforeseen circumstances and events not attributable to the Seller, which the diligence of a prudent businessman could not have averted – e.g., labor dispute, war, fire, obstacles to transportation, raw-material shortage, government measures) or disruptions to business, whether faced by the Seller or any of its suppliers, that prevent the Seller – through no fault of its own – to deliver the Object of Purchase when due, any related delivery date or deadline is postponed by the duration of such obstruction, and insofar as such disruptions result in a delay of more than four months, the Purchaser may rescind the contract.
7.7 The Seller’s compliance with delivery dates and deadlines presupposes that the Seller itself is supplied in an accurate and timely fashion, unless such supplies to the Seller are its own responsibility and it did not enter into a specific hedging transaction with the supplier in question, exercising the requisite diligence. The Seller will undertake such efforts as may be necessary to procure the goods, and it will notify the Purchaser of any expected delay as soon as possible.
7.8 In the event that, at the time of the Purchaser’s order, the product selected by it is unavailable, the Seller will so inform the Purchaser in the order confirmation without delay, and no contract is concluded. If the product specified by the Purchaser in the order is temporarily unavailable, the Seller will likewise so inform the Purchaser without delay in the order confirmation.
8.1 The Purchaser is obligated to accept the Object of Purchase within 14 days of the notification signaling readiness for shipment.
8.2 In the event of the Purchaser’s failure to effect acceptance, the Seller may avail itself of such rights as applicable law may prescribe. If the Seller demands damages, such damages equal 15% of the net purchase price. The Purchaser is free to furnish evidence to the effect that actual damages were lower. Damages are to be increased or decreased if and to the extent that the Seller demonstrates greater – or the Purchaser demonstrates lesser – damages, respectively.
9. Retention of title
9.1 The Object of Purchase remains the Seller’s property until all of the claims to which the Seller is entitled under the purchase agreement have been settled. Such retention of title also stays intact with respect to all of the Seller’s claims against the Purchaser under an ongoing business relationship. In the event that the Object of Purchase is a vehicle, the Seller is entitled to keep the registration certificate (Part II) in its possession for the duration of retention of title.
9.2 So long as retention of title remains in effect, the Purchaser may neither dispose of the Object of Purchase nor grant third parties a contractual right to use the same.
9.3 In the event that the realizable value of security exceeds the claims by more than 10%, the Seller will release security of its choice upon the Purchaser’s demand.
10. Purchaser’s defect-based claims concerning new vehicles and other Objects of Purchase
10.1 Information found in descriptions of the scope of delivery, appearance, output, dimensions, weight, etc. at the time of the closing are incorporated into the contract by reference. They are to be regarded as approximate and do not amount to a warranty; instead, they serve as a standard used in determining whether the Object of Purchase is free from defects. The Seller has the right to change design or form, deviate from color tones as well as modify the scope of delivery, provided that the Object of Purchase is not materially altered as a result and the changes do not place an unreasonable burden on the Purchaser. No rights may be derived solely from the Seller’s use of characters or numbers to designate the order or the Object of Purchase.
10.2 To assert claims based on defects, the Purchaser must meet its statutory duty to examine goods and report defects (§§ 377, 381 of the Commercial Code (Handelsgesetzbuch - HGB). In the event that a defect is discovered during the examination or at a later point in time, the Seller is to be notified in writing without delay, and such notice is deemed to have been made promptly so long as it is dispatched within seven business days, the time of such dispatch being of the essence. Irrespective of such duty to examine goods and report defects, the Purchaser must report patent defects in writing within seven business days of delivery. In this case, too, the time of such notice’s dispatch is of the essence. In the event that the Purchaser fails to examine goods and/or report defects as required, any liability for the unreported defect is excluded.
10.3 If the Purchaser demands remedial performance, such performance is limited to the removal of the defect. § 439 (2) of the Civil Code is not affected.
10.4 In the event that remedial performance has failed to achieve its objective, or if an adequate grace period to be set by the Purchaser in writing has lapsed in vain (or may be dispensed with under applicable legal provisions), the Purchaser may rescind the purchase agreement or abate the purchase price. However, the right of rescission is excluded in cases of minor defects.
10.5 The Purchaser holds claims for damages or the reimbursement of expenditures made in vain only pursuant to item 14 of the GTS; such claims are excluded in all other respects.
11. Purchaser’s defect-based claims regarding used Objects of Purchase
The sale of used Objects of Purchase is transacted to the exclusion of any claims based on material defects. Such exclusion of liability for material defects does not encompass the Purchaser’s claims for damages or the reimbursement of expenditures made in vain pursuant to item 14 of the GTS, if any.
12. Remedial performance is rendered subject to the following conditions:
12.1 The Purchaser must register claims for defect removal with the Seller or such Seller-authorized service partner as may be nearest the location of the Object of Purchase; in the latter case, the Purchaser must immediately so notify the Seller in writing.
12.2 Replaced parts become the Seller’s property and are to be surrendered upon request.
12.3 With regard to parts installed for purposes of defect removal, the Purchaser may assert warranty claims until the end of the period of limitation applicable to the Object of Purchase.
13.1 In the event that the Seller takes back the Object of Purchase, it is to be valued irrespective of the underlying reason for such take-back, and at the Purchaser’s request (which must be communicated immediately following the Object of Purchase’s return), a publicly appointed and sworn expert – e.g., Deutsche Automobil Treuhand GmbH (DAT) – named by the Purchaser will determine the fair market value. In the event that the Purchaser does not call for such valuation, the Seller will estimate the value in its equitable discretion, and such value will then be binding upon both parties.
13.2 If the take-back is based on a breach of duty committed by the Purchaser, the same will bear any and all costs of taking back and liquidating the Object of Purchase, such costs to equal five percent of the fair market value determined if no proof is presented. They are to be increased or decreased if and to the extent that the Seller demonstrates greater – or the Purchaser demonstrates lesser – damages, respectively.
The Seller’s liability under the Product Liability Act (Produkthaftungsgesetz), in cases of the express assumption of a guarantee or procurement risk, on account of intentional misconduct or gross negligence or for defects that it fraudulently concealed is unlimited. Likewise, the Seller bears unlimited liability for intentional or negligent injuries to life, body or health. In cases of property damages or financial loss caused by slight negligence, the Seller’s liability is limited to breaches of duties (i) that must be discharged if the contract is to be properly consummated, or (ii) on the fulfillment of which the Purchaser may reasonably rely to a special degree (“Cardinal Contractual Obligations”), on the one hand and such damages as may (i) be foreseeable at the time of the closing and (ii) typically be associated with the contract in question on the other.
15.1 In deviation from § 438 (1) no. 3 of the Civil Code, the general period of limitation for the Purchaser’s claims based on material and legal defects ends one year from delivery, and this applies likewise to the limitation of recourse claims within the supply chain according to § 445b (1) of the Civil Code, provided that the last contract in such supply chain is not an agreement for the purchase of consumer goods. Insofar as acceptance has been agreed, the period of limitation commences upon the acceptance of the Object of Purchase.
15.2 The foregoing periods of limitation do not apply to those of the Product Liability Act. Claims for damages according to item 14 are subject to statutory periods of limitations, which also govern defects of a structure or with respect to items supplied that caused the structure to be defective despite being used thereon in the customary fashion. §§ 438 (1) nos. 1 and 2, and 438 (3) of the Civil Code are likewise unaffected. The Purchaser’s claims for damages according to item 14 of the GTS are subject exclusively to the statutory periods of limitation.
16.1 The parties are committed to doing business without engaging in corruption; they undertake to refrain from corrupt and other criminal conduct and will adopt such measures as may be necessary to avoid such behavior. Specifically, they undertake to take precautions against the following examples of grave infractions:
a) engaging in criminal acts in business relations, including but not limited to money-laundering, fraud, misappropriation, forgery of documents or technical records, falsification of evidentiary data, indirect false certification, suppression of documents as well as anti-competitive collusion in the context of tenders;
b) offering, promising or granting benefits to domestic or foreign public employees, officials or individuals with special public-service obligations, who participate in the award or execution of contracts;
c) offering, promising or granting or demanding, accepting promises for or accepting benefits in relations with business partners in exchange for improper preferential treatment in national or international business relations;
d) disclosing or procuring business or trade secrets as well as exploiting submissions without authorization; and
e) violating national or European competition and/or anti-trust law.
16.2 In cases of a breach of the obligation from item 16.1 of the GTS, the other party may terminate the contract for cause.
16.3 In cases of a breach of the obligation from item 16.1 of the GTS, the non-offending party may exclude the offending one from the award of future contracts.
17. Choice of law, legal venue, miscellaneous
17.1 The contractual relationship between the Purchaser and the Seller is subject solely to the law of the Federal Republic of German, to the exclusion of any conflict-of-law rules imposed by international private law and the United States Convention on contracts for the International Sale of Goods (CISG). The interpretation of this agreement, including these clauses, is governed exclusively by its German version.
17.2 To the extent permitted by law, the exclusive legal venue for any current or future claim arising from or in connection with the business relationship between the Seller and a merchant within the meaning of the Commercial Code, a legal entity under public law or a public-law special fund is the location of the Seller’s registered offices.
17.3 The place of performance is the location of the Seller’s registered offices.
17.4 The Seller collects, stores and uses customer data as part of the transaction of contracts. With regard to the details, reference is made to the Seller’s data-protection rules, which are available online and may be viewed there at any time.
17.5 The customer procures that (i) goods stored or acquired from the authorized economic agent are kept in safe establishments as well as at safe handling sites and are protected against unauthorized access, and (ii) the staff assigned thereto as well as any business partner acting on its behalf are advised that they, too, must adopt measures with a view to safeguarding the supply chain mentioned above.
17.6 In the event that a clause of these general terms and conditions is ineffective, the agreement as well as the remaining provisions hereof continue in full force and effect, and any ineffective or void clause is to be replaced by one corresponding with its economic intent.
Current as of 07/2019