General Terms and Conditions

General Terms and Conditions of Unilift GmbH & Co. KG
for the Sale of Used Machinery

This English version is a translation provided for information purposes only. In the event of any discrepancy between this translation and the German original, the German version shall prevail.

You can find our General Terms and Conditions of Hire here.

I. General Provisions and Scope

1. Our terms and conditions apply exclusively; we do not recognise any terms of the customer that conflict with or deviate from our terms and conditions, unless we have expressly agreed to their validity in writing. Our terms and conditions also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms conflict with or deviate from our terms and conditions.
2. We are entitled to subsequently amend these terms and conditions in ongoing contracts. Any amendment only becomes effective once the customer has consented to it or their consent is deemed to have been given in accordance with the following sentences. We will notify the customer of the new terms and conditions in text form no later than two months before the proposed date on which they are to take effect and will at the same time inform them of the amended clauses. Consent to the validity of the new terms and conditions is deemed to have been given if the customer has not notified us of their refusal before the proposed date on which the amendments take effect. We will expressly draw the customer's attention to this effect of approval in our notification.
3. Our terms and conditions also apply exclusively to future contracts concluded within the framework of the business relationship between the customer and us, even if we do not expressly refer to them.
4. Our terms and conditions apply only in relation to entrepreneurs, legal entities under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).

II. Offer, Conclusion of Contract and Offer Documents

1. Our offers are subject to change and non-binding and may be revoked by us at any time until the customer has declared acceptance in writing, unless we have expressly designated our offer as binding.
2. We may deviate from the documents included in the contract, such as illustrations, drawings and details of weights and dimensions (together referred to here as "details"), within the scope of technical progress or for production-related reasons to an extent that is reasonable for the customer, unless we have expressly designated the details as binding. We furthermore reserve the right to make technical changes as well as changes in form, colour, material and/or weight within the scope of technical progress and to an extent reasonable for the customer. Details constitute an agreed quality of the delivery item only if we have expressly agreed this with the customer.
3. By placing an order, the customer bindingly declares their intention to purchase the ordered delivery item. We are entitled to accept the contractual offer contained in the order within two weeks of its receipt by us. Acceptance may be declared either by written order confirmation or by commencing delivery of the delivery item to the customer. In the latter case, our delivery note shall serve as the order confirmation. The order confirmation and our terms and conditions are decisive for the content of the contract.
4. The contract is concluded subject to correct and timely delivery to us by our own suppliers. This applies only in the event that we are not responsible for the non-delivery, in particular where a congruent hedging transaction has been concluded with our supplier. See also clause X in this respect. We will inform the customer of the unavailability of the service without undue delay and will refund any consideration without undue delay.
5. If justified doubts arise as to the customer's creditworthiness at or after conclusion of the contract (for example if attachments or other enforcement measures are taken against them, if insolvency proceedings are opened or their opening is refused for lack of assets, or if the customer pledges stocks, receivables owed to us or purchased goods), we may make performance of the contract conditional upon advance payment or the provision of security by the customer. If the customer fails to make the advance payment or provide the security even after a reasonable period has expired, we are entitled to withdraw from the contract in whole or in part.

III. Prices, Ancillary Costs and Payment Terms

1. Unless otherwise agreed, our prices are net prices ex works Ludwigsfelde (EXW – INCOTERMS 2000; from 1 January 2011 INCOTERMS 2010), excluding ancillary costs such as freight and customs duties; these will be invoiced separately if incurred. Value added tax is not included in our prices; where value added tax arises, it will be shown separately in the invoice at the rate applicable on the date of invoicing.
2. Unless the contract expressly provides otherwise, we will package the delivery item at the customer's expense and invoice the customer for the resulting costs (calculated at cost price).
3. Where we are obliged to bear freight costs on the basis of an express agreement, we are obliged to bear only the agreed freight. Unless the customer has issued other express instructions, we are not obliged to arrange the cheapest form of carriage.
4. Unless the contract or the invoice expressly provides otherwise, the customer is obliged to pay invoice amounts without deduction, in cash or by bank transfer free of charges to one of our accounts, within 14 days of the invoice date. Decisive is the receipt of the money by us or the crediting of the amount to our account. Upon expiry of the 14-day period, the customer is in default of payment.
5. Cheques and bills of exchange are accepted only on account of performance and on the basis of an express prior agreement. All charges or costs arising from the collection of bills of exchange or cheques shall be borne by the customer.
6. The customer may only set off claims if their counterclaims have been established with final legal effect or are undisputed. This applies to the same extent to the assertion of rights of retention and rights to refuse performance by the customer.

IV. Transfer of Risk, Dispatch and Export, Packaging Material and Transport Insurance

1. Unless the contract provides otherwise, delivery ex works Ludwigsfelde (EXW – INCOTERMS 2000; from 1 January 2011 INCOTERMS 2010) is agreed.
2. If the customer wishes the goods to be transported abroad, they are themselves responsible for complying with all customs, tax or other statutory and official import and export regulations. In particular, the customer must complete and, where necessary, supplement all required forms themselves and arrange for the clearance of the delivery item and/or the accompanying documents.
3. If, by express agreement with the customer, we undertake customs clearance in whole or in part, we act in this respect solely as the customer's vicarious agent. No obligations arise for us from such activity. The customer remains obliged to settle in full any customs duties, taxes, contributions, levies and similar payments demanded. Should any claim be made against us in this respect, the customer is obliged to indemnify us against this payment obligation upon first demand.
4. The risk of accidental loss or accidental deterioration of the delivery item passes to the customer upon handover or, in the case of sale involving carriage, upon delivery to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment, irrespective of the place of dispatch. This also applies to partial deliveries and irrespective of whether carriage-free delivery has been agreed. If dispatch is delayed at the customer's request or if the customer is in default of acceptance or in debtor's default, the risk passes to them as early as the date of readiness for dispatch. The costs arising from the delay (in particular for storage) shall be borne by the customer.
5. If the goods are to be inspected on the basis of an express agreement with the customer, acceptance takes place at our warehouse in Ludwigsfelde. We bear the material costs of acceptance; the customer bears travel and accommodation costs.
6. Packaging materials become the property of the customer and are not taken back.
7. If the customer so wishes, we will arrange transport insurance for the delivery; the costs incurred shall be borne by the customer.

V. Delivery, Delivery Period, Default of Acceptance and Delay in Delivery

1. Partial deliveries are permissible insofar as they are reasonable for the customer.
2. The delivery period stated by us commences only once all technical questions have been clarified with the customer.
3. Compliance with our delivery obligation further requires the timely and proper fulfilment of the customer's obligations, in particular the making of the agreed payments and, where applicable, the provision of agreed securities. We reserve the right to plead non-performance of the contract.
4. If the customer is in default of acceptance, we are entitled to demand compensation for any additional expenses incurred (for example due to storage of the delivery item). If the customer culpably breaches other duties to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect (including additional expenses). We reserve the right to assert further claims, in particular claims for damages where the customer, in addition to being in default of acceptance, is also in debtor's default.
5. Cases of force majeure (unforeseen circumstances and events for which we are not at fault and which we could not have avoided even with the diligence of a prudent businessperson, for example industrial disputes at our premises or at those of our suppliers, war, fire, obstacles to transport, shortage of raw materials, official measures, natural disasters or lockouts) suspend our delivery obligation for the duration of such events plus a reasonable start-up period, and to the extent of their effect. This also applies if we are already in default of delivery. We will notify the customer without undue delay of the occurrence of a case of force majeure and of the expected duration of the impediment. We are entitled to withdraw from the contract in whole or in part with regard to the part not yet performed if, owing to the duration of the force majeure, continuation of the contract is unreasonable for us, also taking the customer's interests into account.
6. If the impediment lasts longer than three months, the customer is entitled, after setting a reasonable additional period, to withdraw from the contract with regard to the part not yet performed.
7. We are liable in accordance with the statutory provisions where the delay in delivery is based on an intentional breach of contract for which we are responsible. We are also liable in accordance with the statutory provisions where the delay in delivery results in injury to life, limb or health. Where the delay in delivery is based on a grossly negligent breach of duty by us or our vicarious agents, our liability for damages is limited to the foreseeable damage typical of the contract.
8. Where the delay has been caused only negligently by us or our vicarious agents, we are liable only to a limited extent, namely for the foreseeable damage typical of the contract.
9. In all cases other than those set out in clauses V. 7–8, we are not liable for any delay in delivery.

VI. Retention of Title

1. We retain title to the delivery item (also referred to as goods subject to retention of title) until the purchase price and all receivables arising from the ongoing business relationship with the customer have been paid in full (extended retention of title). The inclusion of individual receivables in a current account and the striking of a balance do not affect the retention of title; in such a case, the retention relates to the acknowledged or actual balance. Payment is deemed to have been made only upon receipt of the equivalent value by us or in our bank account. The retention of title does not revive in respect of delivery items if, after the customer has acquired title to those delivery items, new receivables arise against them from the business relationship.
2. In the event of conduct by the customer in breach of contract, in particular default of payment, we are entitled under the statutory provisions to withdraw from the contract and to take back the delivery item. Taking back or seizing the delivery item by us always constitutes withdrawal from the contract. After taking back the delivery item, we are entitled to realise it. The proceeds of realisation shall be set off against the customer's liabilities – less reasonable costs of realisation – in accordance with Section 367 of the German Civil Code (BGB).
3. The customer is obliged to treat the delivery item with care; in particular, they are obliged to insure it adequately at their own expense at replacement value against fire, water and theft damage. Where maintenance and/or inspection work is required, the customer must carry this out regularly at their own expense and risk.
4. In the event of attachment or other intervention by third parties, the customer must notify us in writing without undue delay so that we can bring an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO, the customer is liable for the loss incurred by us.
5. The customer is entitled to resell the goods subject to retention of title in the ordinary course of business. However, they hereby assign to us all receivables (including all balance claims from a current account, including those arising after termination of a current account relationship) in the amount of the final invoice amount (including value added tax) of our claim which accrue to them from the resale or on any other legal ground against their customers or third parties, irrespective of whether the goods subject to retention of title have been resold with or without processing. We accept this assignment. The customer remains authorised to collect these receivables even after the assignment. Our authority to collect the receivables ourselves remains unaffected. However, we undertake not to collect the receivables as long as the customer meets their payment obligations from the proceeds received, is not in default of payment and there is no suspension of payments. If, however, this is the case, we may demand that the customer informs us of the assigned receivables and their debtors, provides all information required for collection, in particular details of the address of the debtor (third party), hands over the associated documents and notifies the debtors (third parties) of the assignment.
6. If the law of the state in which the delivery item is located does not permit a retention of title corresponding to the above provision, but does allow the customer to reserve or be granted similar rights in rem in the delivery item to secure their receivables, such rights are deemed to be reserved for us or granted by the customer to us upon conclusion of the contract. The customer is obliged to cooperate in all measures we wish to take to protect our right of ownership or, in its place, another right in the goods subject to retention of title.
7. We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the receivables to be secured by more than 10 per cent; the selection of the securities to be released is at our discretion.

VII. Liability for Damages

1. Our liability for damages, on whatever legal ground, in particular also arising from impossibility, breach of duties during contractual negotiations or tort, is limited in accordance with this clause VII.
2. We are liable in the event of fraudulent concealment of a defect, for damage arising from injury to life, limb or health, in the event of intent, or insofar as we have assumed a guarantee. In the event of gross negligence, we are liable only to a limited extent, namely for the foreseeable damage typical of the contract.
3. In the event of merely negligent breach of material rights or duties arising from the content and purpose of the contract, we are likewise liable only to a limited extent, namely for the foreseeable damage typical of the contract.
4. Apart from the cases set out in clauses VII. 2 and 3, we are not liable for damage caused by ordinary negligence.
5. Insofar as liability for damages towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, staff and representatives.

VIII. Limitation Periods

1. Claims arising from a guarantee or claims for damages become time-barred within one year. This does not apply to the customer's right to withdraw from the contract on account of a breach of duty for which we are responsible and which does not consist of a defect. Notwithstanding sentence 1, the statutory limitation periods apply to the following claims of the customer:
1. under the German Product Liability Act as well as on account of damage arising from injury to life, limb, health or from the breach of material rights and duties under the contract,
2. on account of damage based on an intentional or grossly negligent breach of duty by us or our vicarious agents,
3. on account of fraudulent concealment of a defect,
4. for reimbursement of expenses pursuant to Section 478 (2) of the German Civil Code (BGB).
2. Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, the suspension of expiry, the suspension and the recommencement of periods remain unaffected.
3. Our claims against the customer become time-barred in accordance with the statutory provisions.

IX. Warranty

1. Under these terms and conditions we sell used forklift trucks, conveying and lifting equipment only. As the delivery items are used, any warranty for defects is excluded, subject to the provisions on other claims for damages or reimbursement of expenses in clause IX. 2 and to any guarantee that may have been assumed. The exclusion does not apply to a fraudulently concealed defect.
2. Clause VII applies to claims for damages or reimbursement of expenses, and clauses VIII. 1–3 apply accordingly to the limitation of such claims.

X. Procurement Risk and Guarantees

1. We assume no procurement risk and no guarantees whatsoever, unless we have concluded an express agreement with the customer in this respect. Manufacturers' guarantees remain unaffected.

XI. Data Protection

1. We are entitled to process and store the data received about the customer in connection with the business relationship – even if such data originates from third parties – in accordance with the requirements of the German Federal Data Protection Act, and to have it processed and stored by third parties commissioned by us.

XII. Place of Jurisdiction and Place of Performance

1. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is our registered office in Ludwigsfelde, Germany. The same applies if the customer has no general place of jurisdiction in Germany or relocates their domicile or habitual residence abroad after conclusion of the contract, or if their domicile or habitual residence is unknown at the time the action is brought. However, we reserve the right to bring an action against the customer at their general place of jurisdiction.
2. Unless otherwise agreed with the customer, our registered office in Ludwigsfelde, Germany is also the place of performance.

XIII. Applicable Law

1. The law of the Federal Republic of Germany applies. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

XIV. Final Provisions

1. Should individual provisions of the contract concluded between the customer and us be or become invalid, the validity of the remainder of the contract shall not be affected. The invalid provision shall be deemed to be replaced by a provision which comes closest, in a legally effective manner, to the economic sense and purpose of the invalid provision. The above provision applies accordingly in the event of gaps in the provisions.
2. Should individual clauses of these terms and conditions be or become invalid, Sections 306 (1) and (2) of the German Civil Code (BGB) apply, notwithstanding clause XIV. 1.
3. No act on our part, other than an express written declaration of waiver, constitutes a waiver of any right to which we are entitled under the contract, these terms and conditions or the law. Any delay in exercising our rights likewise does not constitute a waiver of the right concerned. A single waiver of a right does not constitute a waiver of that right on another occasion.