- General Terms and Conditions for the procurement and sale of used vehicles from the USA
Berlin Motors USC GmbH is not the owner of the object of purchase. It is not the seller, but solely commissioned to broker the purchase contract. The purchase contract is concluded directly between the buyer/orderer and the owner of the vehicle in the USA.
In the name of the seller, the orderer/buyer is referred to the following terms and conditions as part of the purchase contract to be concluded.
- §1. Conclusion of the contract:
In the case of an order for the procurement of a motor vehicle from the USA, the buyer/orderer is bound to the order if the purchase contract/procurement order is confirmed within a 14-day period by the seller from the USA. However, the buyer/customer will be informed immediately if, in exceptional cases, procurement of the ordered vehicle should not be possible in the individual case.
- §2. Transfer of rights and obligations of the buyer/orderer:
Transfers of rights and obligations of the buyer/orderer from the sales contract/procurement order require the written consent of the seller to be effective.
- §3. Payment of the purchase price:
1. The buyer/orderer makes a down payment in the amount of % of the anticipated purchase price in the USA upon conclusion of the purchase contract/order. Further advance payments are then to be made if additional costs are incurred, e.g. freight costs and customs duty upon the vehicle's arrival at the European port of destination. The vehicle will only be handed over after full payment of the purchase price plus all additional costs. 2. The buyer/orderer is free to choose whether to make the down payment on the expected purchase price in EURO or US dollars. In case of a down payment in EURO, the amount will be converted at the daily exchange rate. The buyer/orderer bears the currency risk
3. Offsetting against claims of the seller is only permissible if the counterclaim of the buyer/orderer is undisputed or a legally binding title exists; the buyer/orderer can only assert a right of retention.; if it is based on claims from the purchase contract/procurement order.
4. In the event of default of payment by the buyer/orderer, the seller can withdraw from the contract, after having unsuccessfully granted the buyer/customer a two-week grace period for payment of the outstanding amount with the declaration that he will withdraw from the purchase contract if payment is not made.
- §4. Delivery and delay in delivery:
1. As vehicles are regularly procured in the USA on the basis of customer requirements, delivery dates can only be given to the American forwarding agent after the freight advice has been issued; these dates are always non-binding. If the buyer/customer wishes to withdraw from the contract due to non-fulfilment and/or demand compensation instead of performance, he must grant the seller a reasonable grace period for delivery after expiry of the missed delivery date. If the buyer/orderer is entitled to compensation instead of performance, the claim is limited to a maximum of 10% of the agreed purchase price in the case of slight negligence.
If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who, at the time the contract is concluded, is acting in the exercise of his commercial or self-employed professional activity, claims for damages in cases of slight negligence are excluded. Any liability of the seller is completely excluded if the damage would also have occurred in case of timely delivery.
2.Freight insurance is a fundamental component of price fixing in the purchase contract/procurement order. Berlin Motors USC GmbH will advise the buyer/orderer accordingly at the request of the buyer/orderer. The transport insurance to be taken out only covers damage during sea transport. For any land transport to the departure port in the USA, only the transport insurance of the respective carrier in the USA will come into force. Carriers / forwarding agents in the USA are insured with US $750,000 against transport damages. Parts placed in the vehicle or loose parts on the vehicle are excluded from the transport insurance. In the case of open transport, damage due to stone chipping as well as damage due to weather conditions is excluded.
Force majeure or operational disruptions occurring at the seller or his suppliers, which temporarily prevent the seller, through no fault of his own, from delivering the object of purchase on the agreed date or within the agreed period, will postpone the agreed periods and dates by the duration of the disruptions in performance caused by these circumstances. If such disruptions lead to a delay in performance of more than 4 months, the buyer/ordered can withdraw from the contract. Other rights of withdrawal remain unaffected.
- §5. Acceptance
The buyer/orderer is obligated to accept the object of purchase within 3 days of receipt of the notification of readiness. In the event of non-acceptance, the seller can make use of his legal rights.
- §6. Reservation of ownership:
The object of purchase shall remain the property of the seller until settlement of the claims to which the seller is entitled on the basis of the purchase contract/procurement contract. If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who, at the time the contract is concluded, is acting in the exercise of his commercial or selfemployed professional activity, the retention of title shall also remain in force for claims of the seller against the buyer/orderer arising from the current business relationship until the settlement of claims due in connection with the purchase.
At the request of the buyer/orderer the seller is obliged to waive the retention of ownership if the buyer/orderer has finally fulfilled all claims in connection with the main object and there is an appropriate security for the remaining claims from the current business relations. For the duration of the retention of ownership, the seller is entitled to the right to possess the registration certificate part 11 (vehicle registration document).
As long as the reservation of ownership exists, the buyer/orderer may neither dispose of the object of purchase nor contractually grant third parties to use it.
- §7. Liability for material defects:
1. Claims of the buyer/orderer due to material defects become statute-barred one year after the delivery of the object of purchase to the buyer/orderer. If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who, at the time the contract is concluded, is acting in the exercise of his commercial or self-employed professional activity, the sale shall be effected to the exclusion of any claims for material defects. In any case excluded for the so-called "Numbers Matching", further claims shall remain unaffected if the seller is compulsorily liable by law or something else is agreed upon, especially in the case of the assumption of a guarantee.
In case of fraudulent concealment of defects or the assumption of a guarantee for the quality, further claims remain unaffected.
2. The following applies to the handling of the removal of defects: The buyer/orderer must assert claims for removal of defects with the seller and his agent in Berlin. In the case of verbal notification of claims, the buyer/orderer must be provided with a written confirmation of receipt of the notification. If the object of purchase becomes inoperable due to a material defect, the buyer/customer may, with the consent of the seller, contact the master car mechanic nearest to the location of the inoperable object of purchase.
If the location of the non-operational object of purchase is more than 50 km away from Berlin, replaced parts become the property of the seller. The buyer/orderer can assert material defect claims based on the purchase contract for the parts installed to remedy the defects until the expiry of the limitation period of the object of purchase.
- §8. Liability limitations:
If the seller has to pay for damages caused by slight negligence in accordance with the statutory provisions under these terms and conditions, the seller's liability shall be limited.
Liability shall only exist in the event of breach of material contractual obligations and shall be limited to the typical damage foreseeable at the time the contract was concluded. This limitation does not apply in the event of injury to life, body or health. Insofar as the damage is covered by an insurance policy taken out by the buyer/orderer for the matter in question, the seller is only liable for any associated disadvantages of the buyer/orderer, e.g. higher insurance premiums or interest disadvantages until the insurance company settles the claim.
2. Irrespective of any fault on the part of the seller, any liability of the seller in the event of fraudulent concealment of the defect, from the assumption of a guarantee or a procurement risk and under the Product Liability Act, shall remain unaffected.
3. Excluded is the personal liability of the legal representatives, vicarious agents and employees of the seller for damage caused by them through slight negligence.
- §9. Place of jurisdiction:
1. For all present and future claims arising from the business relationship with merchants, including bills of exchange and cheque claims, the exclusive place of jurisdiction is the registered office of the seller.
2. The same place of jurisdiction shall apply if the buyer/orderer has no general place of jurisdiction in Germany, has moved after the conclusion of the contract, his domicile or usual place of residence is out of the country, or his domicile or usual place of residence is not known at the time of the filing a suit. In all other respects, the seller's place of residence shall be the place of jurisdiction for claims of the seller against the buyer.
- §10. Transport business
The following provisions govern the business relations between Berlin Motors and its contractual partners with regard to closed transport contracts.
The terms and conditions of business laid down or included here shall apply exclusively; any terms and conditions of the contractual partner which conflict with or deviate from our terms and conditions of business shall not be recognised unless their validity has been expressly agreed in writing by Berlin Motors. Our terms and conditions of business shall also apply if we provide services to the contractual partner without reservation in the knowledge of terms and conditions of the contractual partner which conflict with or deviate from our terms and conditions of business.
- §10. Storage:
The goods are always brought to the customs warehouse and stored and secured for the necessary period of time. The type, quality and quantity delivered will be noted on a takeover report. For missing, incomplete or incorrect documents on the part of the client or recipient of the goods, which are absolutely necessary for the export and thus cause unnecessary delay, we charge the customer or recipient after 21 days stand & security fees of $15.00 per day in the USA.
- §11. Customs clearance & import:
Berlin Motors guarantees a speedy handling of the customs procedure. For the classification or determination of the customs value, only the competent customs office is responsible. For extraordinary events, which are the responsibility of third parties, Berlin Motors assumes no liability. All information regarding customs clearance and condition of purchased vehicles on behalf of the client is provided without guarantee. In the case of a transport order, the client must inform us in writing about the quantity and type of customs goods. Possible costs incurred for customs inspections / container inspection facilities (can be arranged in the port of shipment as well as in the port of arrival) are not included in the offer and will be charged according to the terms of the contract.
After customs clearance, the goods can be secured and stored free of charge for 7 days. From the 8th day, the client is charged for stand & security fees of €8 net per day.
- §12. Transport in Europe:
Unless otherwise agreed, the place of performance for the delivery / service, as well as for payment, is the registered office of Berlin Motors. The delivery period begins with the legally valid conclusion of the contractual agreement and ends on the day on which the goods are delivered, the service is rendered, the goods are held ready for collection or delivery, or the service is properly offered. No warranty or guarantee is given for a specific delivery time, but agreed delivery times are basically only approximate values, unless fixed dates are expressly included in the contract. Berlin Motors can withdraw from the order if the delivery / performance becomes impossible due to force majeure or other unavoidable obstacles within the sphere of Berlin Motors. The delivery / service is carried out on account and risk of the contractual partner, partial deliveries and services are possible. Loading, transport and delivery of the goods to be delivered shall in all cases be at the risk of the contractual partner, unless otherwise agreed or contrary to statutory provisions. Transport insurance will only be taken out at the express request of the client. The contractual partner is obliged to accept the agreed delivery / service without delay. The purchaser and recipient of the goods or services is obliged to prove that the goods or services have been handed over without externally visible damage and that the goods or services were defective at the time of performance.
Berlin Motors must be notified in writing of any defects or damage occurring immediately after acceptance of the goods or receipt of the service, otherwise the claim will be forfeited, whereby the complaint must include the nature and extent of the damage. Any damage must be recorded in writing upon acceptance of the goods and confirmed by the carrier. Complaints at a later date are not possible
Any claims for damages by the contracting party to Berlin Motors shall be limited to the amount of the invoice, unless the damage is due to gross negligence or intent on the part of Berlin Motors. In addition, Berlin Motors shall not be liable for loss of profits and consequential damage caused by defects, unless these are due to gross negligence or intentional breach of duty by Berlin Motors. Insofar as damages and disadvantages have arisen due to delayed delivery or performance which are not due to a grossly negligent or intentional breach of duty in accordance with §454 HGB (German Commercial Code), no liability is assumed for such damages, nor for damages based on a slightly negligent breach of duty. §Section 438 HGB is applicable. If the customer or recipient does not notify Berlin Motors in writing in text form within 21 days of delivery, all claims arising from the exceeding of the delivery period expire. Berlin Motors is entitled to remedy the damage itself or have it repaired by third parties within a reasonable period of time without reduction of the agreed price. In all other respects, the statutory provisions on damages shall apply.
For transport business in Europe, the General International Forwarding Conditions (ADSp) and the Convention on the Contract for the International Carriage of Goods by Road (CMR) also apply. A separate transport insurance is possible and must be confirmed in writing at least 3 days before the execution of the order. The liability is based on CMR with the following additions:
- Reservations on the occasion of the delivery of the goods in transit must contain detailed information about damage. In the event of non-common inspection of the cargo and timely written notification in the event of damage, Berlin Motors or a third party commissioned by it must be given the opportunity to inspect the damage without delay and must be notified in writing when and where such inspection is possible, failing which it will be assumed that the damage did not occur while Berlin Motors was in charge of the damage.
- For dents without damage to the paintwork, or scratches, paint splinters and damage to the paintwork, an obligation to pay compensation by the transport company is expressly excluded if the damage results from the agreed use of open vehicles not covered by tarpaulins.
- All non-standard, special equipment parts, accessories, and other objects in vehicles, etc. must be notified in writing when the order is placed, otherwise it is assumed that these items were not available at the time of the takeover.
- If the vehicles to be transported are not safely ready to be driven, or if other special features must be observed, this must be communicated in writing when the order is placed. In the case of vintage car transports and special vehicles, written notification must be given when the order is placed as to whether a special service is required. The suitability of vehicles for transport in open transport units not covered by tarpaulins must be assessed by the customer and, if necessary, the goods to be transported shall be packed accordingly without impairing the loading and unloading capability on or from our transport units. The client shall be liable for damages resulting from the unsuitability or defectiveness of the goods in transit.
- Vehicles are not checked for signs of soiling, interior dirt, interior damage, missing accessories and technical defects. Complaints in this direction cannot be considered, nor can complaints about vehicles that are accepted in a dirty, icy or snowcovered condition. In the event of liquid leaks or parts coming loose on the VP's transported vehicles, the VP is liable for any consequential costs incurred.
- Should the transport be carried out with open vehicles not covered by tarpaulins, any damages and losses caused by this are excluded from liability for compensation.
- The loading and unloading of the goods to be transported is not included in the transport order. For this purpose, Berlin Motors provides the sender or the recipient with the respective truck driver or third parties free of charge who shall act exclusively on the instructions of the sender or recipient. The sender and recipient must ensure that they are present during loading and unloading, otherwise the persons provided by us will carry out the loading and unloading with the usual care.
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