General Terms and Conditions for the Sale of Gyrocopters
These General Terms and Conditions shall apply with regard to all contracts for the purchase of gyrocopters of the Rotorvox brand between the buyer and the seller. Any General Terms and Conditions of Purchase of the buyer are hereby expressly rejected.
2. Conclusion of contract, purchase price, quality
2.1. Conclusion of contract
The buyer purchases from the seller the gyrocopter/s of the Rotorvox brand (hereinafter referred to as “Gyrocopter“) in accordance with the number, type and the configuration as stated in the signed purchase contract form and according to the technical description contained in ANNEX 1. This Contract shall only come into effect by the signature of both parties.
2.2. Purchase price
The agreed purchase price without the statutory value-added tax (net purchase price) is specified by the parties within the purchase contract form. In addition to the net purchase price, the seller will charge the buyer the statutory value-added tax applicable at the time of invoicing, provided that the sale of the object of purchase is subject to value-added tax.
Discount deductions or other rebates shall be excluded. Any additional services agreed upon and any costs disbursed by the seller for the buyer shall be at the expense of the buyer, unless otherwise provided.
Illustrations and drawings, dimensions, weights and colour specifications in catalogues, price lists and other printed material or publications available to third parties (e. g. Internet pages, etc.) as well as any information about performance such as airspeed, operating costs or fuel consumption are non-binding and shall not be understood as quality warranted or assured to the buyer. The owed (not warranted) quality of the object of purchase shall exclusively result from this contract of purchase, in particular from Annex 1, by taking into account the following provisions.
The seller reserves the right to deviations from the technical data to the extent required for compliance with the official requirements applicable in the Federal Republic of Germany until delivery of the object of purchase. Any official requirements issued in the Federal Republic of Germany in the period between conclusion of contract and delivery of the object of purchase on their announcement will automatically become an integral part of the type certification for the Federal Republic of Germany and of this contract of purchase. The parties explicitly agree that the criteria for registration and/or use in other countries than the Federal Republic of Germany may strictly require an advanced equipment or technical adjustments. Such advanced equipment and adjustments for the purpose of achieving a type certification outside the Federal Republic of Germany shall not be owed by the seller. Compliance with any and all criteria for registration and/or use for achieving certification outside the Federal Republic of Germany shall be the exclusive responsibility of the buyer.
The seller reserves the right to make changes with regard to the object of purchase between conclusion of contract and transfer in the course of further technical development of the gyrocopter (inter alia for technical progress or for increasing flight safety). Furthermore, the seller shall be entitled to exchange equivalent components, in case that individual components are not available in due time and provided that the object of purchase will not be subject to reduction in value thereby.
The seller shall not be obliged to implement any change and/or additional requests which the buyer may express after conclusion of contract. As far as the seller agrees to implement the change and/or additional requests expressed by the buyer after conclusion of contract, the parties will have to agree on the adjustment of the purchase price as well as on the date of transfer.
3. Transfer, transfer of risk, packaging
The purchase price specified in the purchase contract form is ex works or ex seller’s warehouse respectively. Unless otherwise provided for in writing, the buyer shall be obliged to collect the unpacked gyrocopter by himself. Delivery of the object of purchase by the seller shall not be owed.
3.2. Transfer of risk
Upon transfer of the object of purchase to the buyer or to the carrier commissioned by the buyer, the risk of accidental loss or accidental deterioration of the object of purchase shall be transferred to the buyer. This shall also apply in case of partial deliveries.
If the parties have expressly agreed in writing on delivery of the object of purchase by the seller or by a carrier commissioned by the seller, the risk will be transferred
- to the buyer on transfer of the object of purchase to the latter, provided that the buyer is a consumer in accordance with § 13 BGB (German Civil Code);
- to the buyer on transfer of the object of purchase to the carrier, provided that the buyer is an entrepreneur in accordance with § 14 BGB (German Civil Code).
3.3. Packaging and transport
In order to avoid any misunderstanding, the parties make clear that the packaging of the object of purchase (and the taking back thereof by the seller), the dismantling of the gyrocopter for transportation, the transport itself as well as the transport insurance, the transfer of the gyrocopter of any kind, the re-assembly of the gyrocopter after transportation, trainings, insurances, certification and registration (including documentation thereof) shall not be owed by the seller owing to the conclusion of this contract. The parties shall be free to agree on these services to be rendered by the seller at the expense of the buyer by means of a separate written agreement.
3.4. Fees, duties and other charges
Fees, duties, import duties and any other taxes, fees and charges levied within and outside the Federal Republic of Germany in connection with the gyrocopter shall exclusively be born by the buyer. He shall also be responsible for handling all of these issues.
4. Date of transfer, withdrawal
4.1. Date of transfer and withdrawal by the buyer
If a date of transfer has not expressly been agreed upon, the planned date of transfer stated in the purchase contract form shall not be binding.
Compliance with the planned date of transfer first of all requires the timely and orderly fulfilment of the buyer’s obligations, in particular payment of the purchase price in due time as well as the submission of all necessary documents, approvals, and information at the time of conclusion of contract. If the buyer does not meet his obligations arising from this contract in due time, the planned date of transfer will be postponed accordingly.
If the planned date of transfer has been exceeded by 6 weeks, the buyer shall be entitled to request the seller in writing to transfer the object of purchase within an appropriate period which will have to amount to at least 2 weeks. If the seller allows such period of grace to expire fruitlessly, the buyer will be entitled to withdraw from the purchase contract.
If the buyer culpably does not comply with a transfer date warranted in writing, the buyer has to grant a reasonable extension of time which has to amount to at least two weeks for the provision of service. If the seller allows such period of grace to expire fruitlessly, the buyer will be entitled to withdraw from the purchase contract.
4.2. Withdrawal by the seller
The seller shall be entitled to withdraw from the purchase contract after granting a period of grace of 14 days, if the buyer does not meet his contractual obligations (in particular payment of the purchase price in due time) or if insolvency proceedings or similar proceedings are initiated against the assets of the buyer or if initiation has been rejected for lack of assets.
In order to prevent damage to the brand, the seller reserves the right to withdraw from the contract:
- if medical unfitness of the buyer is determined during a medical examination of fitness by an authorized aviation physician,
- in case of personal unfitness by the buyer, determined by the flight instructor or flight instructor’s assistant
- if the buyer fails the practical examination, determined by the responsible Examination Council of the German Ultralight Flight Association (Deutscher Ultraleichtflugverband (DULV) e.V).
5. Transfer, default of acceptance
The seller shall notify the buyer in writing of the completion of the object of purchase (notification of provision) and will hold it ready for collection as from the date reported. The buyer shall be obliged to collect the object of purchase within 14 days after receipt of such notification of provision. Within the framework of the transfer, the parties jointly prepare a handover certificate which is attached to the contract as Annex 3.
The seller shall not be obliged to transfer the object of purchase as long as the buyer has not paid the total gross purchase price for the gyrocopter. The gyrocopter shall be transferred to the buyer or to the latter’s authorized representative on signing the handover certificate. The seller shall be entitled but not obliged to check the power of attorney or power of representation of the authorized representative.
5.2. Default of acceptance
The buyer shall be in default of acceptance without further reminder, if he does not accept the gyrocopter within 14 days as from receipt of the notification of provision.
If the buyer comes into default of acceptance or culpably violates any other obligations to cooperate, the seller shall be entitled to demand compensation for the damage incurred to him hereby (e.g. storage costs, lost profit, and other things), including any additional expenses. Any further claims shall remain reserved. The risk of accidental loss or accidental deterioration of the object of purchase shall be transferred to the buyer at the time when the latter comes into default of acceptance.
6. Terms of payment, default of payment
6.1. Terms of payment
Unless expressly agreed otherwise, payment of the net purchase price as specified in the purchase contract form has to be effected plus any value-added tax and other charges (gross purchase price) as follows:
- 50% of the total gross purchase price as down payment within 10 days after conclusion of the purchase contract;
- 30% of the total gross purchase price as partial payment two months before the planned date of transfer at the latest;
- 20% of the total gross purchase price within 5 days after transmission of the notification of provision, but in any case before transfer of the object of purchase.
Payments shall be deemed effected if the amount due has been credited to the account of the seller irrevocably and free of charge. Production of the object of purchase does not begin until receipt of the down payment in accordance with Paragraph 6.1, section a.
6.2. Default of payment
If the buyer comes into default of a payment obligation according to Paragraph 6.1, the seller shall be entitled to charge default interest in accordance with legal requirements. Assertion of any further damages shall not be affected hereby.
7. Reservation of title
The seller reserves title to the object of purchase until payment in full of all claims arising from the purchase contract.
The buyer shall be obliged to treat the object of purchase with care as long as title has not been passed to him. He shall particularly be obliged to insure the object sufficiently at its original value against damages from theft, fire and water and he has to do so at his own expense. If maintenance and inspection work has to be performed, the buyer has to arrange for such work to be done in due time and at his own expense. Third-party rights must not be established with regard to the reserved goods (disposal, mixing, combination, collateral assignment, etc.). As long as title has not yet been transferred, the buyer shall notify the seller immediately in writing if the object of purchase is seized or otherwise exposed to intervention by any third party. Insofar as such third party is not able to reimburse the seller for the court and out-of-court costs incurred by a legal action pursuant to § 771 ZPO (Code of Civil Procedure), the buyer shall be liable for the loss incurred to the seller.
The seller undertakes to release the collaterals to which he is entitled at the request of the buyer, insofar as their valued exceeds the claims to be secured by more than 20 %.
8. Notices of defect, warranty and liability
If the buyer is a merchant, §§ 377 et seq. of HGB (German Commercial Code) shall apply.
Insofar as the object of purchase does not have the quality agreed between the buyer and the seller, (cf. Paragraph 2.3) or is not suitable for general use, the seller shall be obliged to effect supplementary performance. This shall not apply if the seller is entitled to refuse supplementary performance owing to statutory provisions.
The buyer may initially choose whether supplementary performance shall be effected by rectification or by replacement delivery. The seller shall be entitled, however, to refuse the method of supplementary performance chosen by the buyer, if this would only be possible with disproportionate costs and if the other method of supplementary performance would remain without substantial disadvantages to the buyer. During supplementary performance, reduction of the purchase price or withdrawal from the contract by the buyer shall be excluded. A supplementary performance shall be deemed to have failed after the second unsuccessful attempt, unless anything else arises in particular from the nature of the item or the defect or other circumstances. If the supplementary performance has failed or if the seller has refused supplementary performance altogether, the customer may at his own choice demand reduction of the purchase price or declare withdrawal from the contract.
The buyer may only assert claims for damages owing to a defect under the following conditions if the supplementary performance failed or if the seller has refused supplementary performance. The buyer’s right to assert further claims for damages in line with the following conditions shall remain unaffected hereby.
Notwithstanding the aforementioned provisions and the following restrictions on liability, the seller shall have unlimited liability for damages or injuries to life, body and health caused by a negligent or intentional breach of duty by his legal representatives or vicarious agents as well as for damages covered by the liability obligations under the German Product Liability Act, as well as for any damages resulting from a breach of contract caused wilfully or by gross negligence or by fraudulent intent on part of the seller’s legal representatives or vicarious agents. Insofar as the seller has provided a quality guarantee and/or durability guarantee with regard to the object of the contract or parts thereof, he shall also be liable within the scope of this guarantee. However, the seller shall only be liable for damages which are based on the absence of the guaranteed quality, but which do not directly affect the goods themselves if the risk of such damage is clearly covered by the quality warranty.
The seller shall also be liable for damages caused by slight negligence, provided that such negligence concerns the infringement of contractual obligations the fulfilment of which is of particular importance for the attainment of the contract’s purpose (so-called cardinal obligations). The seller shall only be liable, however, as far as the damages are connected with the contract in a typical way and if they are foreseeable. In case of simple negligent violations of secondary obligations which are not material for the contract, the seller will not be liable. The limitations of liability contained in the clauses 1 – 3 above shall also apply if liability of the legal representatives, executive employees or other vicarious agents of the seller is concerned.
Any further liability shall be excluded irrespective of the legal nature of the asserted claim. As far as the seller’s liability is excluded or restricted, this shall also apply to the personal liability of his staff members, employees, representatives and vicarious agents.
The warranty period shall be one year as from the transfer of the object of purchase, unless the buyer is a consumer in accordance with § 13 BGB. In this case, the warranty period shall be two years. This period shall also apply to claims for compensation of consequential damages, provided that claims are not asserted on the basis of unlawful acts. If the object of purchase is a used gyrocopter, the warranty period shall be one year as from the transfer of the object of purchase – irrespective of whether the buyer is a consumer or an entrepreneur.
Subsidiary agreements to this contract have not been concluded. Modifications of or supplements to this contract require to be made in writing in order to be effective. The same shall apply to the waiver of this written form requirement.
If a provision of these General Terms and Conditions should be or become invalid in full or in part, the legal validity of the remaining provisions of this contract shall remain unaffected. The contracting parties shall be obliged to replace the wholly or partially invalid provision by a provision whose economic purpose comes as close as possible to that of the wholly or partially invalid provision.
Within the framework of the statutory data protection regulations, the seller will collect, process, store and use personal data of the buyer, as far as this will be necessary for the establishment, content-related design or change of the contractual relationship or for settlement of incurred liabilities. Personal data may in particular be: company, name, first name, address, telephone number, telefax number, e-mail address, bank details, tax number and value added tax identification number as well as business identification number, if applicable. The buyer may any time revoke the approval given with respect to the collection and use of personal data with effect for the future.
The place of performance for transfer and payment shall be the main office of the seller. The place of jurisdiction for any disputes arising out of or in connection with this contract shall be Mühlhausen, if the buyer is a merchant, a legal entity under public law or a special fund under public law. The seller shall also be entitled, however, to sue the buyer at his place of jurisdiction.
The laws of the Federal Republic of Germany shall apply on exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).