ATV-General Terms and Conditions (GTC)

ATV GmbH & Co. KG - Terms and conditions 

GTC Sale

ATV GmbH & Co. KG - Terms and conditions - SALE

I. General information 

1. These terms and conditions apply to all offers of the above-mentioned company, hereinafter referred to as ‘Vehicle Constructor’, and to all contracts between the Vehicle Constructor and the customer (buyer or client). All agreements between the Vehicle Constructor and the Customer must be made in writing. Verbal collateral agreements do not exist.

2. The Customer shall be bound to an order for six weeks. The contract is concluded if Vehicle Constructor confirms the order in writing within this period. The scope of the delivery or service shall be based on the details of the order confirmation. However, Vehicle Constructor shall be obliged to inform the Customer immediately if it does not accept the order.

3. If the Customer cancels the contract after conclusion of the contract, Vehicle Constructor shall be entitled to compensation in the amount of 20% of the purchase price/wages. The compensation shall be set higher or lower if Vehicle Constructor proves higher damages or the Customer proves lower damages.

4 The Customer authorises Vehicle Constructor to place subcontracts and to carry out test and transfer runs.

5. Transfer shall be at the expense and risk of the customer.

6. The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between the Vehicle Constructor and the Customer.

II. Estimate of costs 

1. Offers and cost estimates are non-binding or binding.

2. If the customer wishes a binding price quotation, a written cost estimate is required. This must list all work in detail and include the respective price. The Vehicle Builder shall be bound by this cost estimate until the expiry of six weeks after its submission, unless a shorter binding period has been stipulated in the cost estimate.

3. Services rendered for the submission of a cost estimate may be charged to the customer if this has been agreed in individual cases.

4. If an order is placed on the basis of the cost estimate, any costs for the cost estimate shall be offset against the order invoice and the total price may only be exceeded when invoicing the order with the customer's consent.

III. Price and payment terms

1. Cash rebates or discounts shall only become part of the contract if they have been expressly agreed in writing. Any price increases imposed by official order on the day of delivery as well as any tax increases that can be passed on in the meantime may in any case be invoiced additionally to the customer. Material and labour costs are only binding for a period of four months from receipt of the order confirmation. Thereafter, increased labour and material costs may be passed on to the customer.

2. Money orders, bills of exchange and cheques shall only be accepted by special agreement and only on account of performance, with all collection and discount charges being charged. Forwarding and prolongation shall also not be deemed fulfilment.

3. Unless expressly agreed otherwise, the Vehicle Constructor's claim for payment shall be due within 10 days of the invoice date. From the date of default, interest and reminder costs shall be owed at the statutory rate. This does not exclude the assertion of higher damages.

In the case of leased or otherwise externally financed services of Vehicle Constructor, the Customer shall submit any declaration required for the release of the payment by the financier, for example a confirmation of acceptance, no later than the day after delivery. If the declaration is not to be made to the Vehicle Constructor but to a third party, the Vehicle Constructor shall be informed of this at the same time by providing a copy by e-mail or fax. If the Customer does not fulfil the obligation to submit the required declarations in due time, he shall owe interest on arrears starting on the 10th day following the day on which the declaration should have been submitted in accordance with the above, unless the failure to pay is due to a reason other than the failure to submit the required declaration. This shall not exclude the assertion of higher damages.

4. The customer may only offset against the claims of the Vehicle Constructor if the customer's counterclaim is undisputed or a legally binding title exists. The Customer may only assert a right of retention in the amount of the counterclaim asserted by him and only insofar as this claim is based on the same contractual relationship.

IV. Default of payment  

1. If the Customer does not fulfil his payment and insurance obligations or the obligations arising from the Vehicle Constructor's retention of title or security property or if he violates his obligations arising from the Vehicle Constructor's retention of title or security co-ownership, if he suspends his payments or if insolvency proceedings are opened against his assets or another measure is ordered in accordance with the Insolvency Code, the entire remaining claim of the Vehicle Constructor shall become due, even if bills of exchange or cheques with a later maturity date should be outstanding or even if another deferral agreement should have been made between the parties. If the entire remaining claim is not paid immediately by the customer, his right to use the reserved goods shall expire. Vehicle Constructor shall then be entitled to demand the immediate surrender, if applicable, to a third party co-owner subject to retention of title or co-owner by way of security, to the exclusion of any right of retention. 

The Customer shall bear all costs arising from the change of ownership of the vehicle. The Vehicle Constructor shall be entitled to realise the vehicle taken into possession together with its accessories by private sale in the best possible way in order to fulfil the Customer's payment obligation. The proceeds shall be offset against the total claim against the Customer after deduction of the costs and any excess proceeds shall be paid out to the Customer. The Vehicle Constructor shall be obliged to settle the vehicle at the estimated value determined by an officially recognised expert if the Customer requests such a settlement immediately upon surrender of the vehicle.

If the customer fails to fulfil an advance performance obligation despite a reminder, ATV may withdraw from the contract. ATV may then either assert the statutory claims or demand compensation. If ATV demands compensation, this shall amount to 20% of the purchase price. The compensation shall be set higher or lower if ATV proves higher damages or the customer proves that no or lower damages have been incurred. However, it shall amount to at least 5% of the purchase price.

2. A violation of the reserved or collateral co-ownership of the vehicle manufacturer also exists if the customer violates his obligations towards the third party, reserved or collateral co-owner and the latter is authorised to repossess or realise the vehicle.

3. The provisions of clauses 1 and 2 shall also apply to instalment transactions with customers who are entered in the commercial register. In the case of other customers, Vehicle Constructor may terminate the crediting of the payment obligation if the customer is in arrears with at least two consecutive instalments in whole or in part and with at least ten per cent, or five per cent if the term of the contract exceeds three years, of the instalment price and Vehicle Constructor has unsuccessfully set the customer a two-week deadline for payment of the amount in arrears with the declaration that it will demand the entire remaining debt if payment is not made within the deadline. The Vehicle Constructor shall be entitled to the same rights if the Customer defaults in whole or in part on the honouring of bills of exchange or cheques. Vehicle Constructor shall also be entitled to withdraw from the contract in the event of non-payment of even one instalment or non-payment of a bill of exchange or cheque. The reduced value of the vehicle or the body shall also be determined in this case by an officially recognised expert.

4. The customer may not invoke the fact that he needs the vehicle or the body for special reasons, in particular to maintain his business, against the claims arising from the retention of title, ownership by way of security and default of payment.

V. Delivery 

1. Delivery dates or delivery periods, which can be agreed as binding or non-binding, must be stated in writing. Delivery periods shall commence upon receipt of the order confirmation or, if an outstanding agreement on the type of execution is not reached until later, at this time. If the customer requests any modification of the delivery item prior to delivery, the delivery period shall not run until the expiry of the day of agreement on the execution; Vehicle Constructor shall be entitled to adjust the delivery periods accordingly in the event of such subsequent modifications.

2. Six weeks after exceeding a non-binding delivery date or a non-binding delivery period, the Customer may request the Vehicle Constructor to deliver within a reasonable period of time. If no delivery is made within this period, the Vehicle Constructor shall be in default.

3. In the event of default, the customer may set the Vehicle Constructor a reasonable grace period in writing, stating that he will refuse to accept the service after expiry of the grace period. After unsuccessful expiry of the grace period, the Customer shall be entitled to withdraw from the contract by written declaration or, in the case of intent or gross negligence to be proven by him, to demand compensation for non-fulfilment; the claim for delivery shall be excluded in these cases. If the customer is entitled to compensation for damages, this shall be limited to a maximum of 25% of the agreed purchase price in the event of slight negligence on the part of the vehicle manufacturer. If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the contract, claims for damages in the event of slight negligence are excluded.

4. If a binding delivery date or a binding delivery period is exceeded, Vehicle Constructor shall be in default as soon as the delivery date or delivery period is exceeded. However, if the Customer is a legal entity under public law, a special fund under public law or a merchant for whom the contract is part of the operation of his commercial business, Vehicle Constructor shall first be granted a reasonable grace period in each case of default in performance. The rights of the Customer shall then be determined in accordance with Clause V. Paragraph 3.

5. In the event of inability to deliver through no fault of Vehicle Constructor or its suppliers, as well as in the event of force majeure and other circumstances beyond Vehicle Constructor's control, such as riots, operational disruptions, strikes or lockouts, there shall be no delay in delivery. Both parties shall then have the right to withdraw from the contract four months after the agreed delivery date has been exceeded without setting a deadline.

6. Der Fahrzeugbauer behält sich Konstruktions- und Formänderungen, Abweichungen im Farbton sowie Änderungen des Lieferumfanges vor, soweit nicht das vorgesehene Aussehen des Fahrzeuges und dessen Funktion hierdurch grundlegend geändert wird und die Änderungen unter Berücksichtigung der Interessen des Fahrzeugbauers für den Käufer bei gleichem Qualitätsstandard zumutbar sind.

7. The information in the descriptions regarding performance, weights, fuel consumption, operating costs, speeds, etc. must be described as approximate. This applies to both the vehicle substructure and the vehicle body produced by the vehicle manufacturer. Insofar as the vehicle manufacturer or the vehicle builder have used symbols or numbers to designate the order, no rights can be derived from these designations.

VI. Acceptance 

1. The customer has the right to inspect the vehicle at the agreed acceptance location within eight days of receipt of the notification of availability and to carry out a test drive within the limits of the vehicle manufacturer's usual test drives. The customer shall bear the costs of any additional test drive. It shall be deemed a waiver of the right of inspection if the inspection is not carried out within the specified period. The vehicle and the body shall then be deemed to have been accepted and properly delivered upon handover to the customer or his authorised representative. The customer shall be expressly informed of these consequences with the notification of availability. If the vehicle is driven by the customer or their authorised representative during a test drive prior to acceptance, the customer shall be liable for any damage caused to the vehicle if this was culpably caused by the driver.

2. If the Customer remains in arrears with the acceptance of the vehicle for more than fourteen days after notification of provision, the Vehicle Constructor shall be entitled to withdraw from the contract after setting a grace period of fourteen days or to claim damages for non-performance. It shall not be necessary to set a grace period if the Customer seriously and definitively refuses acceptance or is obviously unable to make payment within this period. If Vehicle Constructor demands compensation for damages, this shall amount to 20% of the purchase price/wages. The compensation shall be set higher or lower if Vehicle Constructor proves higher damages or the customer proves lower damages. This authorisation can only be excluded by written agreement. If Vehicle Constructor does not make use of these rights, it may, without prejudice to its other rights, freely dispose of its delivery item or deliver a similar item in its place within a reasonable period of time in accordance with the contractual conditions.

VII. Retention of title, transfer of ownership by way of security 

1. All objects of purchase shall remain the property of the Vehicle Constructor until complete fulfilment of all obligations of the Customer arising from the contract. If Vehicle Constructor has only supplied the vehicle or trailer superstructures, the retention of title shall apply to these superstructures if they are not or do not become essential components of the vehicle.

2. If the customer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the contract, the retention of title shall also remain in force for all claims arising in connection with the object of purchase. In addition, the retention of title vis-à-vis the aforementioned customer shall also extend to the claims that Vehicle Constructor has against the customer from its ongoing business relationships. At the customer's request, Vehicle Constructor shall be obliged to waive the retention of title if the customer has incontestably fulfilled all claims in connection with the object of purchase and adequate security exists for the remaining claims from the ongoing business relationship.

3. If the vehicle manufacturer supplies superstructures that are connected to the substructure and/or the rest of the vehicle in such a way that they cannot be removed by loosening screw and bolt connections, or if he supplies accessories (loading bridges, loading cranes, insulation, interior fittings, etc.), the following shall apply,
a) if the vehicle intended for the assembly of the body is the property of a third party subject to retention of title or security ownership: The Customer shall ensure that the third party grants Vehicle Constructor co-ownership subject to retention of title or co-ownership by way of security. He must provide a written declaration from the third party. The Vehicle Constructor shall receive the sole right of retention or security ownership when the third party's right ends. The Customer must then ensure that the third party hands over the vehicle or trailer title directly to Vehicle Constructor. Vehicle Constructor shall be entitled to contact the third party directly regarding the agreement and subsequent settlement of the reserved or co-ownership.
b) if the vehicle intended for the assembly of the body is owned by the third party: The Customer is obliged to transfer to Vehicle Constructor the ownership by way of security of the entire vehicle, including the body, and to use the vehicle only on loan for the duration of the ownership by way of security in relation to Vehicle Constructor. The transfer of ownership by way of security and the agreement of the loan relationship shall be deemed to have been completed when the vehicle is handed over to the Customer for the purpose of acceptance, while retaining the vehicle or trailer registration document.

4. In the event of repairs, the customer is obliged to transfer the vehicle by way of security and to use it on loan if the repaired vehicle is handed over to him after completion and before full payment of the repair costs. The transfer of ownership by way of security and the agreement of the loan relationship are completed as soon as the vehicle is handed over to the customer with retention of the vehicle or trailer registration document.

5. As long as the Vehicle Constructor retains title or ownership by way of security, any sale, pledging or transfer by way of security, leasing or other transfer of the object of the order is not permitted without the written consent of the Vehicle Constructor. If the object of the order is resold by the Customer with the Vehicle Constructor's consent prior to payment, the purchase price claim against the third party purchaser of the object of the order shall be assigned to the Vehicle Constructor upon conclusion of the resale agreement.
In this case, the Customer shall remain authorised and obliged to collect the claim arising from the delivery or service as trustee of the Vehicle Constructor until revoked. The Vehicle Constructor shall have the sole right to possession of the vehicle or trailer registration document for the duration of its ownership. The Customer shall be obliged to apply in writing to the registration office for the letter to be handed over to the Vehicle Constructor.

6. in the event of access by third parties to the goods subject to retention of title, in particular seizures, the customer shall be informed of the Vehicle Constructor's ownership and the latter shall be notified immediately so that the Vehicle Constructor can enforce its ownership rights. If the third party is not in a position to reimburse Vehicle Constructor for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable for these.

7. for the duration of the retention of title or ownership by way of security, the vehicle shall be insured by the Buyer against third-party liability and fully comprehensive insurance, with the proviso that the rights arising from the insurance shall accrue to Vehicle Constructor. The Vehicle Constructor is also authorised to take out the insurance in the name of and for the account of the Customer. In the event of damage, the insurance benefits shall be used in full for the repair of the vehicle and the bodywork. In the event of a total loss, the insurance benefits shall be used to settle the Vehicle Constructor's claims; the Customer shall be entitled to the excess amount.

8. the customer is obliged to keep the vehicle in proper condition during the period of retention of title or ownership by way of security and to have any necessary repairs carried out immediately, except in emergencies, in the vehicle manufacturer's workshop or in a workshop recognised by the vehicle manufacturer.

9. to the extent that accessories, spare parts and aggregates installed for work services have not become essential components of the subject matter of the order, the Contractor shall retain title thereto until full and uncontested payment has been made. 

VIII. Extended right of lien 

1. The Vehicle Constructor shall be entitled to a contractual lien on the items that have come into his possession as a result of the order due to his claim arising from a contract for work.

2. The contractual lien may also be asserted on account of claims arising from work carried out earlier, deliveries of spare parts and other services, insofar as they are connected with the subject matter of the order. The contractual lien shall only apply to other claims arising from the business relationship insofar as these are undisputed or a legally binding title exists and the object of the order belongs to the client.

IX. Liability for material defects 

1. Claims for material defects of the buyer arising from the delivery of new vehicles, superstructures or vehicle parts shall become statute-barred two years after delivery of the object of purchase.

2. Claims for material defects of the buyer arising from the delivery of used vehicles, superstructures or vehicle parts shall become statute-barred one year after delivery of the object of purchase.

3. Claims for material defects of the customer due to material defects from work services shall become statute-barred one year after acceptance of the work.

4. In deviation from IX. nos. 1 and 2, a limitation period of one year from delivery shall apply to new objects of purchase and work services; in the case of the sale of used vehicles, superstructures or vehicle parts, the exclusion of any liability for material defects shall apply if the customer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the contract.

5. In the event of fraudulent concealment of defects, further claims shall remain unaffected.

6. claims for material defects shall apply to vehicles which the Vehicle Constructor supplies in its own name, as well as to vehicle superstructures, accessory installations and repairs carried out by it. They also apply to such installed parts that the Vehicle Constructor does not manufacture. In the case of tyres, batteries, electrical parts, hydraulic systems, V-belts, cooling units and tarpaulin materials for motor vehicles and trailers, the claims to which Vehicle Constructor is entitled against the manufacturer due to a defect are hereby assigned to the Customer, if the customer is a legal entity under public law, a special fund under public law or a merchant for whom the contract is part of the operation of his commercial business. The other customers shall only have claims for material defects against Vehicle Constructor in respect of the individual parts referred to in the preceding sentence if these claims have first been asserted against the manufacturer of the individual parts and the manufacturer fails to fulfil these claims within a reasonable period of time.

7. Claims for material defects must be made as soon as possible after a defect is discovered. The rectification of defects must be carried out by the Vehicle Constructor himself, unless he expressly informs the Customer that the work can be carried out by a specific other company.

8. claims for material defects shall be limited to the replacement or repair of those parts for which there is a defect in the material or in the workmanship. Parts that are replaced must be sent or presented to the Vehicle Builder. Replaced parts shall become his property. The customer shall not be charged for the costs incurred due to the material defect for the removal and installation and, if applicable, for the dispatch of parts. Additional costs arising from the fact that parts to be removed during the repair can no longer be installed due to ageing and wear shall be borne by the customer.

9. If the rectification fails after a reasonable period of time, the customer may, at his discretion, demand a reduction in the remuneration or cancellation of the contract. In addition, compensation for direct or indirect damage suffered by the customer, irrespective of the legal grounds, shall not be granted unless Vehicle Constructor acts wilfully or with gross negligence.

10. For the parts installed to remedy defects, the buyer may assert material defects based on the order until the expiry of the limitation period of the delivery item.

11. claims for material defects shall lapse

a) if the delivery item or the repaired item has been modified by a third party in a manner not authorised by the Vehicle Builder,

b) if parts are installed whose use has not been authorised by the Vehicle Builder,

c) if the customer does not follow the vehicle manufacturer's instructions regarding the handling of the delivery item,

d) if it is established that the gross vehicle weight or the axle pressure permitted under the relevant provisions of the Road Traffic Licensing Regulations or the payload or chassis load-bearing capacity on which the purchase contract is based has been exceeded and if, after examination by the vehicle manufacturer, there is a causal link between these events and the defect found (if applicable, expert opinion, e.g. DEKRA).

12. Natural wear and tear is excluded from liability for material defects. This also applies to damage, storage and corrosion damage caused by improper handling.

13. If the vehicle manufacturer disputes the existence of a material defect, the arbitration board of the bodywork and vehicle construction trade responsible for the registered office of the vehicle manufacturer shall decide. If there is no arbitration board responsible for the registered office of the vehicle manufacturer, a sworn motor vehicle expert shall decide. If no agreement can be reached on the appointment of an expert, the expert appointed at the request of the customer by the Chamber of Crafts or Chamber of Industry and Commerce responsible for the registered office of the vehicle manufacturer shall decide. If the arbitration board or the expert establishes a material defect, the Vehicle Constructor shall bear the costs of the decision, otherwise the Customer shall bear the costs.

14. The above paragraphs conclusively contain the liability for material defects for the services of the Vehicle Constructor and exclude other claims for material defects against him.

X. Spare parts

The customer is aware that differences in the surface finish may occur due to different and changing manufacturing processes. If replacement body parts are supplied partially coated by the body manufacturer, this is only a protective primer in accordance with the contract. This also applies if this corresponds approximately to the body colour. The customer is also aware that damage to the surface of the primer cannot be ruled out due to storage and transport. Primers that differ in colour or have a damaged surface are therefore deemed to be in accordance with the contract and free of defects.

XI. Liability 

1. if the Contractor is liable in accordance with the statutory provisions or in accordance with these Terms and Conditions for damage caused by slight negligence, the Vehicle Constructor shall only be liable for damage resulting from the breach of material contractual obligations, unless life, limb or health have been injured. Liability shall be limited to the typical damage foreseeable at the time the contract was concluded. Liability shall only exist in the event of a breach of material contractual obligations and shall be limited to the typical damage foreseeable at the time the contract was concluded. If the damage is covered by an insurance policy taken out by the customer for the claim in question (with the exception of comprehensive insurance), Vehicle Constructor shall only be liable for any associated disadvantages suffered by the customer, e.g. higher insurance premiums or interest disadvantages until the claim is settled by the insurance company. Liability for the loss of money, securities, goods and merchandise as well as other valuables that are not expressly taken into safekeeping as well as for damage caused by a defect in the object of the order shall not be accepted in the event of slight negligence.

2. Irrespective of any fault on the part of the Vehicle Builder, any liability 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. The personal liability of the legal representatives, vicarious agents and employees of the Vehicle Constructor for damage caused by slight negligence on their part is excluded.

4. Insofar as a legal entity under public law, a special fund under public law or a merchant for whom the contract is part of the operation of his commercial business is affected, the limitation of liability specified in Section XI. (1) to (3) shall also apply to claims for damages for non-performance, but only to the extent that compensation for indirect or consequential damages is demanded, unless the liability is based on a warranty intended to protect the buyer against the risk of such damages. Any liability shall be limited to the damage foreseeable at the time of conclusion of the contract.

5. In any case, liability of the vehicle manufacturer under the Product Liability Act remains unaffected.

6. Transfer of risk upon collection or delivery by ATV. In the event of collection or delivery of a vehicle by Vehicle Constructor, the risk of accidental loss or accidental deterioration shall pass to the customer upon handover of the vehicle to the carrier/forwarding agent/transfer driver. The Vehicle Constructor hereby assigns any claims against third parties, in particular the carrier/forwarding agent, to the Customer. The receipt of the declaration of acceptance is waived.

XII. Partial invalidity 

Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.

XIII. Place of jurisdiction 

The exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants, including bills of exchange and cheque claims, shall be the registered office of the Vehicle Constructor. The same place of jurisdiction shall apply if the customer has no general place of jurisdiction in Germany, moves his domicile or usual place of residence outside Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is filed.

Status: April 2020