General Terms and Conditions of Business of the SELLER
for the sale of motor vehicles and motor vehicle quotas in the B2B segment
Date: September 2018
1. Formation of the Purchase Agreement
1.1 1The BUYER’s offer to the SELLER to enter into a purchase agreement takes effect by the BUYER returning the contract form which has been completed in advance by the SELLER and signed by the BUYER’s legal representative or authorised representative and bearing the company stamp after the BUYER has ordered the required motor vehicles. 2The reservation activated by the order of the motor vehicles remains non-binding until such time as the offer has been accepted by the SELLER and expires automatically after one week at the latest without the need to give the BUYER specific notification. 3An offer submitted by the BUYER is binding on the latter. 4The offer cannot be limited in time or its binding nature excluded.
1.2 Compensation claims arising from the relationship for the initiation of the contract, including but not limited to the non-binding reservation of motor vehicles, are excluded by both parties.
1.3 1The acceptance of the offer is effected by the SELLER by returning the countersigned and stamped contract form to the BUYER or by receipt by the BUYER of the notification of readiness of the ordered motor vehicles. 2Unrestricted authorisation to dispose of the motor vehicles is guaranteed by the SELLER as soon as the Purchase Agreement is made.
1.4 Offer and acceptance may be submitted in writing, by fax or by e-mail (using the attached scanned contract form).
1.5 Incomplete offers made by the BUYER are also binding with regard to gaps if the elements missing can be completed from the written correspondence.
2. Subject matter of the contract
2.1 Where the subject matter of the contract refers to factory new vehicles registered for a single day (stationary motor vehicles) by manufacturers or registered to the SELLER or to other as-new motor vehicles registered to EUROPA SERVICE Holding AG group companies, the SELLER declares, without submitting a declaration of guarantee, that to its knowledge all the motor vehicles will be fitted with original motors and that they have no discernible defects, accident damage or other damage.
2.2 1Where the subject matter of the contract refers to motor vehicles previously hired as registered self-driven rental vehicles to third parties, the condition of the motor vehicles is specified in the condition reports/short assessments attached to the Purchase Agreement. 2If the motor vehicles should still be in the immediate possession of third parties at the time the contract is made or are only to be hired to third parties at a later time, the SELLER must only have condition reports/short assessments produced and sent to the BUYER immediately after the motor vehicles have been returned. 3The BUYER acknowledges that the condition reports/short assessments sent are binding.
4The SELLER has the option to have any officially assessed damage repaired before handover or to hand over the motor vehicles to the BUYER in unrepaired or unrectified condition. 5The same also applies to damage incurred during the period of hire and prior to assessment. 6Short assessments or invoices (which are also acknowledged as binding) must be submitted to the BUYER to demonstrate that repairs, subsequent improvements and rectifications have been made correctly by the SELLER prior to handover. 7Neither repaired prior damage nor damage of any kind which has not been repaired entitle the BUYER to withdraw from the Purchase Agreement in whole or part. The above exclusion of withdrawal only not applies to motor vehicles if the damage which remains unrepaired is assessed as requiring repair work, the net cost of which would exceed by 50% the agreed purchase price of the relevant motor vehicles.
8The BUYER’s right to demand a reduction in the price of motor vehicles which are handed over in an unrepaired state up to a net repair amount of 500 EUR (no-claims amount) per motor vehicle is excluded. 9Any further damage will be compensated in the form of a credit note issued by the SELLER equal to the assessed net cost of repair minus the no-claims amount (500 EUR). 10The SELLER is entitled to reduce the amount which is credited for damages by an appropriate and country-specific percentage amount which takes into account the different levels of prices and earnings between Germany and the country for which the motor vehicle is destined.
11Commercial depreciations in value are only credited to the BUYER in the framework of motor vehicle liability accident insurance and then only if the SELLER has obtained the corresponding depreciation amount from the damaging party or its insurance. 12There is no claim to the crediting of commercial depreciation in value in any other cases. No other credit notes for accident-related previous or other damage are granted.
13If the accumulated mileage (actual mileage) of all supplied motor vehicles at the time of handover is greater than the product of “21,000 km” and the “number of supplied motor vehicles” (planned total mileage), the SELLER must credit the difference between actual and planned total mileage exceeding the accumulated total mileage with a flat-rate amount of 0.05 EUR per km as compensation for the BUYER. A right to withdraw on this basis is excluded for the BUYER.
14Offsetting by the BUYER is excluded for all matters described above which are eligible for credit notes.
2.3 1Where the subject matter of the contract refers to motor vehicles regarding which the contracting parties to the Purchase Agreement have agreed to enter a long-term hire contract, ownership is only transferred under the Purchase Agreement once the period of hire has expired. 2In the event of a transfer of ownership the condition of the motor vehicles shall be due in the condition in which they are in immediately following use as self-driven rental vehicles.
2.4 1Unless specified otherwise in the contract form, the motor vehicles are purchased as new vehicles from the SELLER and registered to the SELLER or other EUROPA SERVICE Holding AG group company and therefore sold to the BUYER directly or, in the case of single-day registrations, by the manufacturer second hand at the most. 2The SELLER must document all accident damage of which it is aware during its period of possession and must disclose such damage to the BUYER immediately where the accidents occurred after the Purchase Agreement was made but prior to handover of the motor vehicles.
2.5 1If the precise date of first registration of the motor vehicles is not known at the time the BUYER submits its offer or if it is postponed to a later date, the SELLER must produce or update the delivery plan immediately upon obtaining information about the dates of first registration and send this to the BUYER. The delivery plans made known in this way then become an essential part of the contract.
3. Liability for material defects
3.1 1The motor vehicles are sold exclusive of any liability for material defects. 2This does not apply to claims for compensation arising from liability for material defects arising from grossly negligent or intentional breach of contract by the SELLER or its agents in performance or in the case of injuries to life, limb and health.
3.2 Existing claims held by the SELLER based on liability for material defects to third parties are assigned to the BUYER.
4. Advance payments, collateral
4.1 Instruction must be given for payment by the BUYER of the agreed advance payments on the purchase price on the due date by transfer at no deduction.
4.2 Contractually agreed and provided collateral as well as advance payments made by the BUYER are used to secure all the SELLER’s principal claims, secondary claims, costs and claims for compensation arising from this Purchase Agreement.
5. Performance obligations, rescission, cancellation of contract
5.1 1The SELLER is released from its obligation to perform in the event of accidental loss of one or several motor vehicles prior to the passage of risk (force majeure, theft, property damage, total economic loss, etc.). 2The BUYER is not entitled either to substitute delivery or to compensation for any damage incurred.
5.2 1The BUYER is only entitled to withdraw from the Purchase Agreement if
a) it becomes apparent during implementation of the Purchase Agreement that the SELLER will be able to deliver and hand over fewer than 75% of all the motor vehicles which are the subject matter of the contract for reasons for which the SELLER is not responsible (fractional amounts are calculated by rounding up to the next full number in favour of the BUYER);
b) delivery and handover of the motor vehicles are delayed for longer than 60 calendar days after the agreed or subsequently notified delivery date, which has already been postponed once at the most, for reasons for which the SELLER is not responsible and the BUYER has warned the SELLER at least once to deliver and make handover within a certain time period.
2Declarations of withdrawal by the BUYER for any other reasons are ineffective and thus excluded.
5.3 1The BUYER is not entitled to cancel the Purchase Agreement. Subsequent cancellation of the Purchase Agreement without legal entitlement is only possible upon payment of flat-rate compensation of 15% of the agreed purchase price per motor vehicle, unless the BUYER demonstrates that no or much less damage has been incurred. 2Where the subject matter of the contract refers to motor vehicles regarding which the contracting parties to the Purchase Agreement have agreed to enter a long-term hire contract, the BUYER is aware that the motor vehicles have been transferred at a lower monthly rent than would have been the case had the Purchase Agreement not been previously agreed. 3The SELLER is thus entitled to demand, in addition to the flat-rate compensation referred to above, reimbursement of the damage arising from loss of rental (difference between the agreed rental and the rental which would have been agreed with commercial third parties for a comparable motor vehicle during the hire period without a purchase agreement). 4The actual amount of the damage arising from loss must be demonstrated to the BUYER on request by submitting suitable documents. 5The SELLER is entitled to offset the compensation referred to above against the advance payment or collateral provided by the BUYER.
6. Provision of motor vehicles, payment of purchase price, passage of risk
6.1 Notification of motor vehicles which are ready to be delivered and handed over is given to the BUYER around 2 weeks in advance by sending notification of readiness stating the earliest possible delivery date.
6.2 1If the BUYER is entitled to select specified motor vehicles from a quota of ordered motor vehicles, the BUYER must send corresponding advice of remittance to the SELLER without delay. 2The purchase prices or remaining purchase prices of the motor vehicles selected therein are due for settlement 5 bank working days following receipt of the advice of remittance and instruction must be given by the BUYER for payment by transfer at no deduction by this date at the latest. 3In all other cases the contractually agreed due date continues to apply.
6.3 1The risk of accidental loss or deterioration of the motor vehicles passes to the BUYER when the purchase price or the remaining purchase price falls due for settlement. 2If the contracting parties have concluded prior contracts of hire, the risk of accidental loss or deterioration of the later purchased item passes to the BUYER/hirer, regardless of the outstanding transfer of ownership, as soon as immediate possession is obtained by the BUYER/hirer under a rental agreement.
6.4 Any claims for compensation held by the BUYER against the SELLER based on a first registration or delivery date not yet specified at the time the contract is concluded or which is postponed later are excluded.
7. Transfer of motor vehicle
7.1 1Unless otherwise explicitly agreed, the motor vehicles will be delivered and handed over by the carrier commissioned by the SELLER. 2The transport costs incurred must be paid by the BUYER.
Damage to the vehicles must be noted by the BUYER on delivery of the vehicle on the CMR consignment note, if it is an externally visible loss or damage, and damages must be signed by the freight forwarder. The BUYER undertakes to indemnify the SELLER against damage claims within 24 hours; Sunday and public holiday not included; after delivery in writing with a copy of the CMR consignment note. The BUYER undertakes to provide the necessary documents at the request of the SELLER to assess the damage.
7.2 The motor vehicles will only be delivered to an individually agreed delivery address other than the BUYER’s registered office and handed over to third parties if the full purchase price or remaining purchase price has been received by the SELLER along with all the necessary documents and documents specified in the contract (including but not limited to a storage place agreement).
7.3 1De-registered motor vehicles must be handed over with the contractually agreed accessories, equipment and two sets of keys or similar access media. 2If a previous contract of hire has been made, the motor vehicles and two sets of keys with the certificate of registration part I, initially registered for the SELLER, must be handed over to the BUYER.
7.4 The BUYER must provide the SELLER a copy of the CMR consignment note within a period of 3 working days of the motor vehicles being handed over and must then send the originals within a period of 2 weeks of transfer of the motor vehicles.
8. Default by the BUYER
8.1 1The SELLER may withdraw from the Purchase Agreement if the BUYER defaults on its agreed and due payment obligations or on provision of collateral. 2In this case, the BUYER owes the flat-rate costs of withdrawal amounting to 15% of the agreed purchase price per motor vehicle, unless the BUYER demonstrates that no or much less damage has been incurred. 3The SELLER retains the right to demand higher compensation for withdrawal to the extent that, offsetting saved expenses and other sales revenue to the SELLER, the amount of compensation can be specified in figures and demonstrated. 4The SELLER is entitled to offset asserted withdrawal costs with advance payments made or collateral provided to the BUYER.
8.2 1If the BUYER defaults on acceptance, the BUYER must, from the beginning of the 8th day of the collection date for the motor vehicles stated in the notification of readiness, reimburse to the SELLER flat-rate default costs amounting to 3.75 EUR per additional day of storage and motor vehicle, unless the BUYER demonstrates that no default costs or much lower default costs have been incurred. 2The SELLER retains the right to assert any additional default losses.
9. Passage of ownership
9.1 The passage of ownership to the transferred motor vehicles is effected by the SELLER transferring to the BUYER the documents necessary for transfer of ownership (certificate of registration part II, COC).
9.2 1If a previous contract of hire has been made, the BUYER is obliged, upon expiry of the period of hire, to de-register the motor vehicle and to transfer to the SELLER a scanned copy of the correspondingly cancelled certification of registration part I, including a picture demonstrating the vehicle mileage on the day on which the vehicle ceases to be registered. 2If the minimum mileage agreed in the rental agreement (usually 6,000 km) is not reached, the BUYER must compensate the SELLER for the demonstrated losses incurred by it as a result of such deficit mileage owing to the loss of rebates provided by the manufacturer. 3The purchase price or remaining purchase price and any compensation due owing to deficit mileage will be due on the day on which vehicles are de-registered.
9.3 The SELLER has the right to retain the documents needed for transfer of property with regard to the BUYER if the latter has not yet fulfilled its obligations in full, arising from 7.4 [transfer of transport documents], 9.2 [de-registration and other documentation duties under previous contract of hire, payment of remaining purchase] or 10.1 a) [transfer of entry certificate].
10. Special issues for BUYER with registered office in other country, entry certificate, contractual penalty
10.1 If the BUYER’s registered office is outside The Netherlands in a Member State of the European Union (“territory of the Union”) and the motor vehicles are to be exported there, the following agreements apply.
a) The BUYER must send to the SELLER the copy of the entry certificate (completed in Dutch and sent by the SELLER) within 3 working days of receipt and the original within 2 weeks of receipt for the purpose of obtaining exemption from value-added tax obligations for intracommunity deliveries.
b) Collateral made ready or provided must only be returned by the SELLER in full if the BUYER has provided all the original transport documents and evidence of export (CMR consignment note, entry certificate) in full, correctly and completely to the SELLER.
c) 1The BUYER will incur a contractual penalty equal to the amount of the value-added tax due on the delivery if the BUYER fails to send the requested evidence of export (CMR consignment note, entry certificate) in good time to the SELLER. 2The SELLER retains the right to assert any additional claims based on demonstrable losses. 3The contractual penalty, reduced by the demonstrated losses, must be offset from the value-added tax plus interest subsequently assessed by the tax authorities. 4The SELLER has the right to offset the contractual penalty with the collateral which must be provided by the BUYER.
10.2 If the BUYER’s registered office is located in a country outside the territory of the Union and the motor vehicles are to be exported there, the contracting parties must reach an additional agreement concerning the necessary transport documents and evidence of export which takes account of the special factors in the destination country arising from these circumstances. Items 10.1 b) and c) apply accordingly to the return of collateral which has been made ready or provided and the payment of contractual penalties.
10.3 1The BUYER is required in both of the export constellations referred to above to transport all motor vehicles to the actually agreed destination country and not to import them again to the countries excluded in the Purchase Agreement. 2The BUYER must also impose this requirement on any third party to which the motor vehicles are re-sold. 3If this obligation is not met, the BUYER must, also after termination of this Purchase Agreement, in addition to the contractual penalty incurred by individual agreement, also reimburse in full to the SELLER the following subsequent losses arising from third-party claims (contractual penalties etc.) and other damages incurred by the same as a result of third parties terminating the business relationship with the SELLER owing to breaches of the (re-)import prohibitions.
10.4 The SELLER has the right, if value-added tax-exempt export delivery is rejected by the tax authorities, to full reimbursement of assessed value-added tax from the BUYER on first request.
11. Data protection, confidentiality agreement
11.1 1The personal data of the BUYER’s natural persons (employees, authorised officers, managing directors, executive board members or company proprietors) referred to in the contract and any other personal information obtained in the process of initiating the contract (e-mail addresses, telephone numbers, etc.) are collected, stored and used (inaccessible to third parties) by the SELLER for the purpose of establishing, performing and terminating the contract. 2Personal data are not used for advertising purposes. 3The data are only passed on to third parties if this is urgently necessary for the purpose of performing the contract or the SELLER is required by law to pass on such data, including without consent. 4Any other use is subject to the explicit consent of the BUYER’s data subjects, which may be withdrawn at any time. 5These data subjects may demand information about the data stored on them, the purpose of such storage and the origin of the data. 6They also have a right to have personal data rectified, made unavailable or erased.
11.2 The BUYER may not use, disclose or enable third parties to obtain trade and business secrets which become known to it in the course of the cooperation with the SELLER without consent.
11.3 The BUYER must treat the contents and terms of this Purchase Agreement and any additional agreements with confidentiality with regard to third parties, including after performance.
11.4 1The BUYER must also impose the above confidentiality obligations on its employees. 2The SELLER retains the right to claim damages for any breach of the confidentiality obligations.
12. Final provisions
12.1 1Any modifications or additions to this contract are only valid if made in writing. 2This also applies to the waiving of the requirement for text form itself and to declarations of waiver concerning legal positions arising from this contract or law.
12.2 The contracting parties agree – including with regard to cross-border traffic – that all the legal relations arising from this contract are subject solely to Dutch law thereby excluding the United Nations Convention on Contracts for the International Sale of Goods.
12.3 1Any business or other contractual provisions which are or become ineffective, either in whole or part, or any gap in the provisions, shall not affect the validity of the other provisions. 2It is agreed that ineffective provisions or gaps in provisions shall be deemed retrospectively replaced by effective and feasible provisions which correspond both legally and commercially as closely as possible to that which the contracting parties would have wished or which, in view of the intent and purpose of the contract, would have wished had they considered the matter at the time the contract was made.
12.4 For accounting purposes the BUYER is entitled to demand the issue of pro-forma invoices from the SELLER for ongoing payments under this Purchase Agreement.
12.5 The legal venue for any disputes arising from this contract is the SELLER’s registered office (Roermond).
