General Terms and Conditions

§ 1 – General – Scope

These General Terms and Conditions of BuddyStar GmbH (hereinafter referred to as “Terms of Sale”) apply to all transactions involving the delivery of goods or services to the customer by us.

1. Our Terms of Sale apply exclusively to all types of deliveries and services; any conflicting, supplementary, or deviating terms and conditions of the customer shall be non-binding for us unless we have expressly agreed to their validity in writing. Our Terms of Sale also apply if we do not expressly object to the customer’s terms or carry out the delivery without reservation.
2. These Terms of Sale shall also apply to all future business relationships, even if not expressly agreed upon again.
3. Our Terms of Sale apply only to entrepreneurs (§ 14 BGB). They expressly do not apply in transactions with consumers (§ 13 BGB), nor to construction or real estate developer contracts.

§ 2 – Conclusion of Contract – Offer Documents – Rights to Documents – Modifications

1. Our offers are subject to change unless they are designated as binding in text form. An effective contract is therefore only concluded by our order confirmation or invoice in text form or our provision of services.
2. If the customer’s order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within 2 weeks.
3. We reserve the property rights and copyrights to illustrations, drawings, calculations, samples, cost estimates and other documents or information of a physical or non-physical nature – including in electronic form. The customer requires our express consent in text form before passing them on to third parties.
4. The transfer of the aforementioned items does not constitute a transfer or granting of rights (licence of use).
5. We reserve the right to make changes to the design or shape, deviations in colour and changes to the scope of delivery with regard to the goods during the delivery period, provided that the changes or deviations are reasonable for the buyer, taking into account our interests.
   

§ 3 – Prices – Payments – Payment Terms – Payment Default – Set-off and Retention

1. Unless otherwise agreed, our prices are ex works excluding packaging. If the goods are dispatched at the customer’s request, the customer shall bear the costs for dispatch and – if agreed – for any additional insurance.
2. Statutory VAT is not included in our prices and will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
3. Unless otherwise agreed, 50% of our invoices are due for payment without deduction upon order confirmation and 50% upon collection or notification of our readiness for dispatch. If partial deliveries are made, the payment obligation shall relate proportionately to the respective partial delivery.
4. If the customer is in arrears with a payment, all his payment obligations arising from the business relationship with us shall become due immediately. In this case, we shall be entitled to charge interest at the statutory rate from the relevant date. We reserve the right to provide evidence of higher damages.
5. Discounts, rebates or other reductions require an express agreement in text form.
6. If there are doubts about the customer’s creditworthiness, we may also demand advance payment, cash payment or an appropriate security deposit during the delivery period. This applies in particular if insolvency proceedings have been instituted against the customer’s assets or if the customer is summoned or has been summoned to make an affidavit.
7. The customer shall only be entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognised by us or are undisputed. The customer is only authorised to exercise a right of retention if his counterclaim is based on the same purchase contract.

§ 4 – Delivery Time – Delivery Deadlines – Force Majeure

1. Delivery deadlines or delivery dates are only binding if this has been agreed with the customer in text form.
2. If we are culpably unable to meet an expressly agreed deadline or are in default for other reasons, the customer must grant us a reasonable grace period. If this grace period expires without result, the customer shall be entitled to withdraw from the contract.
3. The delivery deadline shall be deemed to have been met when the goods are made available ex works or, if dispatch has been agreed, when the goods are handed over to the carrier or otherwise dispatched.
4. We shall be entitled to extend the delivery period appropriately if we do not receive the goods or individual components required for the manufacture or processing of the goods despite the prior conclusion of a corresponding purchase contract on our part; our liability for intent or negligence shall remain unaffected in accordance with § 8 of these terms and conditions. We shall inform the customer without delay if the delivery item is not available on time. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. Any consideration already paid by the customer shall be reimbursed immediately. This shall not affect the customer’s right to withdraw from the contract and/or claim damages for non-fulfilment after the expiry of a reasonable deadline set by the customer. The statutory rights to which we are entitled shall also remain unaffected, in particular those in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment).
5. Compliance with our delivery obligations also presupposes the timely and proper fulfilment of the customer’s obligations. The defence of non-performance of the contract remains reserved.
6. If the customer is in default of acceptance or culpably violates other obligations to co-operate, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time at which the customer is in default of acceptance or debtor’s delay. At the same time, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain unaffected.
7. If delivery is delayed due to circumstances of force majeure, e.g. mobilisation, war, riot, pandemic, in particular in the event of industrial action such as strikes and lawful lockouts, as well as in the event of other obstacles that are unforeseeable for us and for which we are not responsible, the agreed delivery time shall be extended by the duration of the obstacle to performance. This shall also apply if such circumstances occur at our suppliers through no fault of our own. The customer shall be informed immediately of the beginning and end of such hindrances.
8. We shall be liable in accordance with the statutory provisions insofar as the underlying contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB.
   We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further fulfilment of the contract has ceased to exist.
9. We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
10. We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.

§ 5 – Delivery – Transfer of risk – Dispatch – Partial deliveries

1. Unless otherwise agreed, deliveries shall be made ex works. This is also the place of fulfilment for the delivery and any subsequent fulfilment.
2. The buyer is responsible for the registration and insurance of the trailer/vehicle. This also applies to all EU member states and third countries. The seller is not aware of the registration regulations in the above-mentioned countries / states. This is the sole responsibility of the buyer.
3. At the customer’s request, the goods will be dispatched to another destination at the customer’s expense. Unless otherwise agreed in text form, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging), taking into account the interests of the customer.
4. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon collection of the goods or, in the case of despatch, upon loading of the goods, even if carriage paid delivery has been agreed and/or despatch is carried out using our own vehicles. The delivery can be insured by transport insurance at the customer’s expense if the customer so wishes.
5. Partial deliveries are permitted unless the partial delivery is unreasonable for the customer. Such unreasonableness shall be deemed to exist in particular if the customer incurs considerable additional expense or considerable additional costs as a result of the partial delivery, the partial delivery cannot be used by the customer within the scope of the contractual purpose or the delivery of the remaining ordered goods is not ensured.

§ 6 – Default of acceptance – Withdrawal

1. If the customer cancels the contract or refuses to accept the ordered goods for reasons for which we are not responsible, we shall be entitled to demand a flat-rate contractual penalty amounting to 30% of the gross order value. We reserve the right to claim further damages. The customer reserves the right to prove that we have incurred no or significantly less damage.

§ 7 – Default of acceptance – damage caused by delay

1. If the customer does not accept the goods on time or is otherwise in default of acceptance or payment, he shall owe us an amount of 2% of the order value or the value of the partial delivery per week or part thereof, but not more than a total of 30% of the order value or the value of the partial delivery.
2. The customer reserves the right to provide evidence of lower damages and we reserve the right to provide evidence of higher damages.
3. If the customer has concluded a leasing contract with a leasing company, the lessee (customer) is obliged to accept the trailer at the agreed pick-up location within 14 days of receipt of the notification of readiness by BuddyStar. In the event of non-acceptance, BuddyStar may charge the customer 20% of the order value as compensation.
4. The compensation is to be set higher if BuddyStar proves higher damages.

§ 8 – Guarantee

1. Buddystar GmbH is liable for material defects in accordance with the applicable statutory provisions, in particular § 434 ff. BGB (GERMAN CIVIL CODE). The warranty period for entrepreneurs is 12 months from delivery of the item.
2. Claims for defects on the part of the customer presuppose that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
3. Subsequent fulfilment shall be effected at our discretion by remedying the defect or delivering a defect-free item. The statutory rights of refusal of subsequent fulfilment remain unaffected by this.
4. Claims for damages and claims for reimbursement of wasted expenditure shall only exist in the event of defects in accordance with § 8 and are otherwise excluded.
5. Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality or in the event of only insignificant impairment of usability. If the customer has made changes to the goods independently or through authorised third parties after the transfer of risk, the customer shall forfeit his claims arising from liability for defects. Technically induced changes to the design or shape, as well as deviations in colour or shade, do not constitute defects, insofar as these are reasonable for the buyer, taking into account the interests of the seller.
6. The warranty shall only apply until the end of the warranty period for the original item, unless a statutory regulation intervenes. Notification of defects shall not release the customer from the obligation to fulfil the agreed payment obligations. Warranty of properties shall in any case require a written declaration and confirmation by the seller.
7. The warranty assumed by the seller shall lapse if improper repair work has been carried out on the delivered item by the seller or a third party or if it has been modified by the installation or attachment of parts of third-party origin and the damage is causally related to the repair or modification carried out. There are also no claims for defects arising from the resulting consequences. The warranty shall also be excluded if it is established that the permissible total weight or the axle loads or the payload or chassis load-bearing capacity on which the delivery contract is based have been exceeded in accordance with the relevant provisions of the Road Traffic Regulations. Natural wear and tear and damage caused by negligent and/or improper handling are excluded from the warranty.
8. Upon handover of the subject matter of the contract, a joint handover protocol shall be drawn up, which shall become an integral part of the contract. The buyer or their legal representative must be authorised and present for acceptance when the subject matter of the contract is handed over.
9. The contractual object is handed over on the day of handover. In the acceptance or handover protocol, any defects are bindingly determined and any supplementary and rectification work still to be carried out is recorded. These are to be remedied or carried out by the seller in accordance with a location and schedule then determined.
10. Unless the protocol contains certain defects as yet to be remedied, the buyer recognises the condition of the subject matter of the contract as being in accordance with the contract upon signing the handover protocol, with the exception of hidden defects.
11. The seller is therefore not liable for defects that were recognisable at the time of handover but were not reported by the buyer on the day of handover and were not recorded in the handover protocol.
12. Recognisable defects existing at the time of handover which do not impair the function and use of the subject matter of the contract or the Buyer’s operating procedures and which can also be remedied without impairing the Buyer’s operating procedures shall not prevent the handover and shall not delay the handover.
13. Within the scope of subsequent fulfilment, we are not obliged to provide the services again or to re-manufacture the contractual item.
14. Notification of defects and complaints must be made to us in writing: By post to BuddyStar GmbH, Alfred-Walz-Str. 23/1, 79312 Emmendingen or by e-mail to service[at]buddystar.de. In the event of a justified complaint within the deadline, the goods must be returned by the customer free of charge to a specialist workshop specified by BuddyStar GmbH and, if justified, will be repaired free of charge or replaced by faultless goods at our discretion. In the event of justified complaints, the seller is initially obliged, at his discretion, to provide subsequent fulfilment or rectification (max. 3 attempts) and/or replacement delivery to the exclusion of other claims. In the event of rectification of defects, the seller shall be obliged to bear the necessary expenses incurred by the seller for the purpose of rectifying the defect, in particular the labour and material costs incurred by the seller.
15. We shall be granted a period of at least 6 months for subsequent fulfilment.
16. If the rectification of defects fails, the customer shall be entitled to reduce the price or, at his discretion, to withdraw from the contract. If the service is to be rectified, the rectification shall be deemed to have failed after the third unsuccessful attempt at the earliest. The customer’s right to demand compensation in accordance with these terms and conditions remains unaffected.
17. The customer shall bear the expenses required for the purpose of rectification insofar as they are increased by the fact that the services or the contractual item are or have been transported to a location other than our works.
18. Without prejudice to further claims on our part, in the event of an unjustified notification of defects, the customer shall reimburse us for the expenses incurred in inspecting and – if requested – rectifying the defect.

§ 9 – Liability

1. We shall be liable without limitation in accordance with the statutory provisions for wilful or grossly negligent breaches of duty and for damages resulting from injury to life, limb or health. Otherwise, we shall only be liable if the breached contractual obligation is recognisably of essential importance for achieving the purpose of the contract, and only to a limited extent up to the amount of the typically foreseeable damage.
2. The limitation of liability under paragraph 1 shall apply accordingly to claims for damages other than contractual claims, in particular claims arising from unauthorised acts, with the exception of claims under the Product Liability Act. It shall also apply in favour of our employees, workers, staff, representatives and vicarious agents.
3. Insofar as we have given a guarantee of quality and/or durability with regard to the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage that is based on the absence of the guaranteed quality or durability but does not occur directly on the goods if the risk of such damage is clearly covered by the guarantee of quality and durability.
4. We are also liable for damages caused by simple negligence, insofar as this negligence concerns the breach of such contractual obligations, the fulfilment of which is of particular importance for achieving the purpose of the contract (cardinal obligations). However, we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. Otherwise, we shall not be liable for simple negligent breaches of secondary obligations that are not essential to the contract. The limitations of liability contained in this § 8 shall also apply insofar as the liability for our legal representatives, executive employees and other vicarious agents is concerned.
5. Any further liability is excluded regardless of the legal nature of the claim asserted. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives, employees and other vicarious agents.
6. Customers outside Germany should observe the local labour law regulations and the licensing requirements for our BuddyStar trailers in the respective country. We accept no liability for this.

§ 10 – Statute of limitations

1. The limitation period for claims and rights due to defects in the goods – regardless of the legal grounds – is one year. However, this does not apply in the cases of § 438 para. 1 no. 1 BGB (defects of title in immovable property), § 438 para. 1 no. 2 BGB (buildings, items for buildings) or § 634a para. 1 no. 2 BGB (buildings or work, the success of which consists in the provision of planning or monitoring services for this). The cases excluded in the above sentence 2 are subject to a limitation period of three years. However, the provisions of this § 9 shall not apply to the limitation period for the seller’s right of recourse pursuant to § 445b para. 1 BGB in the event that the ultimate buyer is a consumer.
2. The limitation periods according to paragraph 1 shall also apply to all claims for damages against us in connection with the defect – irrespective of the legal basis of the claim.
3. However, the limitation periods according to para. 1 and para. 2 shall apply with the following proviso :a) The limitation periods shall generally not apply in the case of intent or fraudulent concealment of a defect or insofar as we have assumed a guarantee for the quality of the delivery item. They shall be replaced by the statutory periods.
   b) The limitation periods shall also not apply to claims for damages in the event of a grossly negligent breach of duty, in the event of a culpable breach of cardinal obligations – not consisting of the delivery of a defective item or the provision of a defective work performance – in the event of culpably caused injury to life, limb or health or in the event of claims under the Product Liability Act. The statutory time limits shall take their place.
4. The limitation period for all claims shall commence upon delivery, in the case of work performances upon acceptance.
5. Unless expressly stipulated otherwise, the statutory provisions on the commencement of the limitation period, suspension of expiry, suspension and recommencement of time limits shall remain unaffected.
6. The above provisions shall apply accordingly to claims for damages that are not related to a defect; para. 1 sentence 1 shall apply to the limitation period.
7. A change in the burden of proof to the detriment of the client is not associated with the above provisions.

§ 11 – Retention of title

1. We reserve title to the purchased item until all payments arising from the contract have been received.
2. The customer is obliged to store the purchased item with the care of a prudent businessman and to treat it with care.
3. The customer is obliged to inform us immediately of any access by third parties to the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods. The customer must notify us immediately of any change of ownership of the goods and any change in his own registered office.
4. We are entitled to withdraw from the contract and demand the return of the goods if the customer acts in breach of contract, in particular in the event of default in payment or breach of an obligation under clauses 2 and 3 of this provision. Further claims remain unaffected by this.
5. The customer shall be entitled to resell the purchased goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties. The customer shall remain authorised to collect this claim even after the assignment. Our authorisation to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer fulfils his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
6. The customer also assigns to us the claims to secure our claims against him which arise against a third party through the combination of the purchased item with a property.
7. The handling and processing of the goods by the customer shall always be carried out in our name and on our behalf. If the goods are processed with items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods supplied by us to the other processed items. The same shall apply if the goods are mixed with other objects not belonging to us.
8. We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.

§ 12 – Property rights

1. We are entitled to all property rights to our goods, including copyrights, trademark rights, company rights and other labelling and know-how, if any. The customer may not manufacture these objects or documents himself or have them manufactured by third parties without our prior consent in text form.
2. If we provide services that have been produced according to the customer’s specifications or other instructions, the customer shall be solely liable in the event that the production and delivery of these services infringes industrial property rights, copyrights or other rights of third parties. Insofar as claims are asserted against us by third parties for such infringements, the customer shall compensate us for all associated damages.

§ 13 – Place of jurisdiction – Applicable law – Place of performance

1. For all disputes arising from the contractual relationship, legal action must be brought before the court with jurisdiction for our registered office. We are also entitled to take legal action at the customer’s head office.
2. The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
3. Unless otherwise stated in the order confirmation, our registered office is the place of performance.

BuddyStar GmbH, Alfred-Walz-Straße 23/1, 79312 Emmendingen

Emmendingen, July 2021