General terms and conditions for the sale of brand-new motorhomes, spare parts, accessories and other items by
MORELO Reisemobile GmbH
Section 1 General - Scope
(1) These terms and conditions of sale of MORELO REISEMOBILE GMBH (hereinafter referred to as the “supplier”) apply exclusively; the supplier shall not acknowledge any provisions of the customer which conflict with or deviate from these terms and conditions of sale unless it has expressly consented to the validity of the conflicting/deviating provisions in writing. These terms and conditions of sale apply even if the supplier makes delivery to the customer without reservation in the knowledge of provisions of the customer which conflict with or deviate from these terms and conditions of sale.
(2) Orders and confirmations as well as any other agreements must be made in writing in order to be valid. This also applies to ancillary agreements and assurances as well as any subsequent modifications to the contract. All agreements that are made between the supplier and the customer for the purposes of executing this contract are set out in writing in this contract. Verbal agreements made by representatives or other agents of the supplier must be confirmed in writing by the supplier.
(3) These terms and conditions also apply to any future business conducted with the customer.
Section 2 Conclusion of the contract – Prices – Payment terms
(1) Offers provided by the supplier are non-binding.
(2) If the order can be considered an offer in accordance with Section 145 of the BGB, the supplier is entitled to accept it within two weeks. An effective purchase contract is established if the supplier has confirmed acceptance of the order for the specified purchase item in writing within this period or if delivery has been made.
(3) Deliveries are subject to the correct and timely receipt of supplies. The supplier shall notify the customer immediately if it is unable to render performance and shall immediately refund any payments already received from the customer.
(4) The supplier is entitled to withdraw from the contract if the customer has filed an application to open insolvency proceedings regarding its assets, if the customer has submitted an affidavit in accordance with Section 807 of the German Code of Civil Procedure (ZPO), if insolvency proceedings regarding the customer’s assets have been opened, or if the opening of such proceedings has been rejected due to a lack of assets.
(5) Unless specified otherwise in the order confirmation, prices apply “ex works”. “Works” is defined as the place of manufacture of the purchase item in question; this may differ from the location of the supplier.
(6) The costs of transport insurance, loading and transportation, as well as customs duties, shall be borne by the customer.
(7) The supplier reserves the right to change the prices accordingly if there is a period of more than four months between the date on which the contract is concluded and the agreed delivery date. If costs increase before the delivery is complete, in particular due to collective labour agreements, changes in material prices and apportionable tax rises, the supplier is entitled to increase the price in proportion with the increase in costs. The supplier shall provide the customer with evidence of the increase in costs on request.
The customer may withdraw from the contract if the total purchase prices for the vehicle and optional equipment and the total transfer fees stated in the purchase price information exceed the total prices specified in the purchase order for the same scope of performance by more than 5% – in the case of an agreed delivery period of at least 18 months, by more than 1.5% on average for each six months of the contract.
(8) Value added tax is not included in the prices; it is stated separately in the invoice at the statutory amount applicable on the day that the invoice is issued.
(9) A discount may only be deducted if this is stated on the invoice.
(10) Any additional services agreed are charged separately.
(11) Unless specified otherwise in the order confirmation and the payment terms, the purchase price and the price for any additional services is due for payment net (without deductions) within 30 days of the invoice date. If the customer falls into payment arrears, the supplier shall be entitled to charge interest on arrears amounting to eight (8) percentage points above the base interest rate. If the supplier is able to prove that it has incurred higher damages due to the payment arrears, it shall be entitled to assert a claim in relation to this.
(12) Payment instructions, cheques and bills of exchange shall be accepted only by special arrangement and only as payment, not in lieu of performance, taking into account all discount and collection charges. (Bills of exchange are only permitted if the customer can prove it is eligible to issue them.) Renegotiated and renewed bills are not considered performance.
(13) If payment by instalment has been agreed, the entire remaining balance – not taking into account the maturity of any bills of exchange – shall become due for payment immediately if the customer is 14 days in arrears with an instalment, stops its payments or has applied to open insolvency proceedings regarding its assets.
(14) The customer shall only be entitled to rights of offset if its counterclaims have been legally established, are undisputed or have been recognised by the supplier. Furthermore, the customer shall only be authorised to exercise a right of retention if its counterclaim is based on the same contractual relationship.
Section 3 Delivery - Delivery period
(1) Unless agreed otherwise in writing, the supplier shall deliver the goods to the customer at the designated place of manufacture at the agreed time or within the agreed period. Alternatively, if the delivery period has not been agreed, the goods shall be made available at the usual time for the delivery of the goods. The supplier shall notify the customer of the place of manufacture and the time at which the goods shall be made available to it.
(2) The delivery date specified in the order confirmation is not binding unless agreed otherwise in writing. The customer may submit a written request to the supplier six (6) weeks after a non-binding delivery date has passed, requesting that it makes delivery within a reasonable period.
(3) Adherence to the supplier’s delivery obligations is contingent on the timely and proper fulfilment of the customer’s obligations. Rights regarding defence of an unperformed contract (Section 320 of the BGB) and defence of uncertainty (Section 321 of the BGB) remain reserved.
(4) The supplier shall be liable in accordance with statutory provisions if the delay in delivery is based on a wilful or grossly negligent breach of duty for which the supplier is responsible; any fault on the part of the supplier’s representatives or vicarious agents shall also be attributed to the supplier. If the delay in delivery is not based on a wilful breach of duty for which the supplier is responsible, the supplier’s liability for damages shall be limited to the foreseeable damage that might typically occur.
(5) Otherwise, liability for a delay in delivery shall – in the case of damages in addition to performance (compensation due to delay in performance) – be limited to lump-sum compensation amounting to 1% of the delivery value for each full week that the delivery is delayed, up to a maximum of 5%. In the case of damages in lieu of performance, compensation shall be limited to 30% of the delivery value. Any further claims of the customer are excluded, even after a deadline for performance set for the supplier has elapsed. Liability on account of culpable injury to life, limb or health remains unaffected.
(6) Force majeure, riots, strikes or lock-outs which – through no fault of the supplier – temporarily prevent the supplier from delivering the purchase item on the agreed date or within the agreed period, shall alter the dates and periods specified in paragraph (2) by the duration of the disruption to performance caused by these circumstances. The supplier is obligated to notify the customer immediately if an event of this nature occurs; at the same time, the supplier is obligated to inform the customer regarding the anticipated duration of the event. If an event of this nature lasts for more than three months, the supplier may withdraw from the contract. Any payments already received from the customer shall be refunded immediately.
(7) The supplier reserves the right to make modifications to the design and shape, alter the colour shade and modify the features and equipment of the purchase item during the delivery period, provided that the purchase item is not significantly altered and that the modifications are acceptable to the customer. The upstream supplier also reserves the right to make technical developments and changes to the chassis; the customer shall bear any price increases associated with such modifications.
Section 3a Withdrawal
(1) The customer may only withdraw from the contract in accordance with statutory provisions if the supplier is responsible for the breach of duty; in the case of defects (Section 5), the statutory requirements apply.
(2) In the event of a breach of duty and at the supplier’s request, the customer must declare within a reasonable period whether it intends to withdraw from the contract on account of the breach of duty or whether it intends to wait for delivery to be made.
Section 4 Acceptance - Transfer of risk
(1) The customer is obligated to accept the purchase item within a period of 14 days of receipt of the delivery notification and/or invoice, unless the specific terms of delivery indicate otherwise.
(2) If the customer defaults on acceptance or culpably breaches other obligations to cooperate, the supplier shall be entitled to claim compensation for any damage incurred as a result, including any additional expenses. This does not affect any other claims.
(3) If the prerequisites specified in paragraph (2) are in place, the risk of accidental loss or accidental degradation of the purchase item shall pass to the customer at the point at which the customer defaults on acceptance or payment.
(4) Upon transfer of risk and during the period of retention of title until the purchase price has been paid in full, the customer is obligated to insure the purchase item on condition that the supplier is granted the rights arising from the insurance policy. Unless otherwise agreed, the benefits arising from the insurance shall be used in full for repairing the purchase item. If the supplier does not have repair work carried out in the case of serious damage, the insurance benefit shall be used to pay off the purchase price, the costs of additional services and any costs paid out by the supplier.
(5) If, due to intent or gross negligence, the customer fails to accept the purchase item within 14 days of receiving the delivery notification and/or invoice, the supplier can set the customer a grace period of a further 14 days, stating that it shall refuse acceptance once this grace period has expired. If this grace period expires without result, the supplier shall be entitled to withdraw from the purchase contract by written notice and to demand compensation. It is not necessary to set a grace period if the customer seriously and definitively refuses acceptance or if the customer is clearly unable to pay the purchase price within this period.
(6) If the supplier demands compensation, the supplier shall be entitled to claim liquidated damages amounting to 15% of the purchase price from the customer. In such cases, the customer reserves the right to prove that no such damage occurred or that it is significantly lower than the lump sum specified.
(7) If the supplier does not assert its rights as defined in paragraphs (5) and (6), the supplier may freely dispose of the purchase item and, in its place, deliver an equivalent purchase item within a reasonable period in accordance with the contractual conditions.
Section 5 Claims for defects
(1) Claims for defects by the customer require it to have duly complied with its obligations to inspect for and give notification of defects in accordance with Section 377 of the German Commercial Code (HGB). Claims for defects must be made in writing. The customer shall bear the full burden of proof for all eligibility requirements, in particular for the defect itself, for the time of the defect and for the timely notification of the defect.
(2) Claims by the customer arising from a material defect shall lapse in accordance with the statutory provisions after a period of two years from the delivery of the purchase item. The state of the art for comparable purchase items upon delivery shall provide the benchmark for determining whether an item is free of defects. Notwithstanding the above, a period of limitations of one year applies to caravans and motorhomes used for commercial purposes; this does not affect the statutory liability of the supplier as defined in paragraphs (6) and (8). The period of limitations in the case of a delivery recourse claim, as defined in Sections 478 and 479 of the BGB, is in no way affected.
(3) If there is a defect affecting the purchase item for which the supplier is responsible, the supplier shall – at its discretion – rectify the defect or deliver an item that is free of defects.
(4) Replaced parts shall become the property of the supplier. The customer may assert claims for defects on the basis of the purchase contract for the parts fitted to rectify the defect up to the point at which the period of limitations for the purchase item expires.
(5) If both kinds of supplementary performance fail, the customer is entitled – at its discretion – to reduce the purchase price or to withdraw from the purchase contract. Supplementary performance in the form of the rectification of the defect shall be deemed to have failed following an unsuccessful second attempt at rectification unless something indicates otherwise; in particular, the nature of the item or defect or the other circumstances. The customer shall not be entitled to withdraw from the contract if the defect is insignificant in nature. When determining the significance of a defect, the various interests must be weighed up. In particular, the expenses required to rectify the defect and – in the case of a defect that cannot be rectified – the functional and aesthetic impairment resulting from the defect must be taken into account.
(6) The supplier shall be liable in accordance with statutory provisions if the customer asserts claims for damages which are based on wilful intent or gross negligence, including the wilful intent or gross negligence of legal representatives or vicarious agents of the supplier. If the supplier is not charged with a wilful breach of contract, its liability for damages shall be limited to the foreseeable damage that might typically occur.
(7) The supplier shall be liable in accordance with statutory provisions if it culpably breaches a material contractual obligation; in such cases, however, its liability for damages shall be limited to the foreseeable damage that might typically occur.
(8) Liability on account of culpable injury to life, limb or health remains unaffected; this also applies in the case of mandatory liability according to the German Product Liability Act.
(9) Liability is excluded unless stipulated otherwise above.
(10) Normal wear and tear is not accepted as a basis for claims for defects.
Section 6 Joint and several liability
(1) Liability for damages which extends further than that specified in section 5 is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from fault in conclusion of a contract, from other breaches of duty or from claims in tort for compensation of material damages in accordance with Section 823 of the BGB. If the damage is covered by an insurance policy that the customer has taken out for the case of damage in question (excluding insurance on a fixed sum basis), the supplier shall only be liable for any disadvantages the customer suffers in connection with said damage – e.g. higher insurance premiums or interest charges – until the claim has been settled by the insurer.
(2) The limitation defined in paragraph (1) shall also apply if the customer demands reimbursement of futile expenses in accordance with Section 284 of the BGB.
(3) If the supplier’s liability for damages is excluded or restricted, this also applies with respect to the personal liability for damages of its employees, representatives and vicarious agents.
Section 7 Retention of title
(1) The supplier shall retain title to the purchase item until all payments arising from the business relationship with the customer have been received. If the parties have agreed payment of the purchase price debt by cheque or bill of exchange, this right of retention shall also extend to the discharge of the bill provided by the customer and accepted by the supplier, and shall not expire when the received cheque is credited to the supplier. If the customer is in breach of contract, in particular if the customer is in payment arrears, the supplier shall be entitled to take back the purchase item. If the supplier takes back the purchase item, this does not constitute a withdrawal from the contract unless the supplier has expressly stated this in writing. If the purchase item is seized by the supplier, this always constitutes a withdrawal from the contract. After taking back the purchase item, the supplier is entitled to exploit it. Any proceeds from this – minus reasonable costs associated with the sale – are to be deducted from the liabilities of the customer.
(2) The customer is obligated to handle the purchase item with care; in particular, the customer is obligated – at its own expense – to insure the purchase item against damage caused by fire, water, theft and natural hazards at a value sufficient to cover its replacement. If maintenance and inspection work is required, the customer must carry this out in a timely manner at its own expense.
(3) In the event of seizure or other interventions by third parties, the customer must notify the supplier immediately – by means of registered letter – so that the supplier can file an action in accordance with Section 771 of the ZPO, and the customer must also immediately make the third party aware of the supplier’s retention of title. If the third party is unable to reimburse the supplier for the judicial and extrajudicial costs arising from an action in accordance with Section 771 of the ZPO, the customer shall be liable for the losses incurred by the supplier.
(4) The customer is entitled to resell the purchase item in the ordinary course of business; however, the customer hereby assigns to the supplier all claims to receivables owing to the supplier – to the extent of the invoice amount (including value added tax) – which it incurs from its purchasers or third parties as a result of the resale, irrespective of whether the purchase item has been resold without being or after having been processed. The customer remains entitled to collect these receivables even after the assignment. This does not affect the supplier’s entitlement to collect the receivables itself. However, the supplier is obligated to refrain from collecting the receivables if the customer meets its payment obligations from the proceeds received, the customer does not fall into payment arrears and, in particular, no application has been made to open composition or insolvency proceedings or equivalent proceedings, or payments have not been suspended. If this is the case, however, the supplier can demand that the customer notifies it of the assigned receivables and their debtors, provides all the information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
(5) Processing or transformation of the purchase item by the customer shall always be carried out on behalf of the supplier. If the purchase item is processed with other items which do not belong to the supplier, the supplier shall acquire co-ownership of the new item based on the value of the purchase item (invoice amount including value added tax) relative to the value of the other items processed at the time when they were processed. In all other respects, the item created by processing is subject to the same conditions as the purchase item delivered under retention of title.
(6) If the purchase item is inseparably mixed with other items which do not belong to the supplier, the supplier shall acquire co-ownership of the new item based on the value of the purchase item (invoice amount including value added tax) relative to the value of the other items mixed at the time when they were mixed. If items are mixed in a way that causes the item created by the customer to be regarded as the principal item, it is agreed that the customer shall transfer co-ownership to the supplier on a proportional basis. The customer shall store the sole or joint property created in this manner on the supplier’s behalf.
(7) If the retention of title or assignment is unenforceable according to the law where the purchase item is located, then the applicable security corresponding to the retention of title or assignment shall be deemed to be agreed. If the customer is required to cooperate in order to obtain such rights, the customer shall undertake – at the request of the supplier and at its own expense – to take any and all measures necessary to establish and maintain such rights.
(8) At the request of the customer, the supplier shall undertake to release the securities to which it is entitled if the nominal value of its securities exceeds the claims being secured by more than 10%. The supplier is free to choose which securities are released.
(9) During the period of simple retention of title, the supplier has the sole right to possess the vehicle registration certificate.
Section 8 Other provisions
(1) If the customer is a trader, the exclusive legal venue is the place of business of the supplier. However, the supplier is also entitled to initiate proceedings against the customer at its general legal venue.
(2) If the customer is a trader and unless specified otherwise in the order confirmation, the registered place of business of the supplier is the place of performance for all obligations arising from the contract, including the payment obligations of the customer.
(3) The law of the Federal Republic of Germany applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
(4) If a provision is or becomes void, this shall not affect the validity of the other provisions.
As of 08/2021