General Terms and Conditions Bestattungswagen HENTSCHKE GmbH & Co. KG

Bestattungswagen Hentschke GmbH & Co.KG Terms and Conditions for the Sale of New Vehicles – Status: 02/2022

I. Scope of Application

1. These General Terms and Conditions for the Sale of New Vehicles (hereinafter "GTC-NV") apply to all contractual relationships between Bestattungswagen Hentschke GmbH & Co.KG (hereinafter "Hentschke") and its customers regarding deliveries and services of any kind provided by Hentschke.

2. All offers, sales, and deliveries are made exclusively on the basis of the version of these GTC-NV current at the time. Additionally, the GTC-NV are available online at www.bestattungswagen.de at all times and can be saved and printed by the Purchaser/Buyer in a reproducible format.

3. These GTC-NV also serve as a framework agreement for all future transactions regarding the sale and/or delivery of products to the same Purchaser/Buyer, without the need for repeated reference in each individual case.

4. Any purchasing conditions of the Purchaser/Buyer are hereby expressly rejected. Deviating agreements to these GTC-NV shall only apply if—and only for the specific case concerned—they have been confirmed in writing by Hentschke as a supplement to these GTC-NV. This requirement for written confirmation applies in all cases, for example, even if Hentschke performs delivery without reservation while being aware of the Purchaser's terms and conditions. No verbal side agreements exist at the time of contract conclusion.

5. Individual agreements made with Hentschke in specific cases (including side agreements, supplements, and amendments to these GTC-NV) shall—provided they were concluded after the contract—always take precedence over these GTC-NV. A written contract or, if such a contract does not exist, our written confirmation to the Purchaser shall be authoritative for the content of such individual agreements.

II. Conclusion of Contract/Transfer of Buyer's Rights and Duties

1. The Buyer is bound to the order for a maximum of three weeks, or six weeks in the case of commercial vehicles. This period is reduced to 10 days (two weeks for commercial vehicles) for vehicles currently in the Seller’s stock. The purchase agreement is concluded when the Seller confirms acceptance of the order for the specified object of purchase in text form within the aforementioned periods or performs the delivery. However, the Seller is obligated to notify the Purchaser immediately if the order is not accepted.

2. The transfer of the Buyer's rights and duties under the purchase agreement requires the Seller's written consent. This does not apply to monetary claims of the Buyer against the Seller. For other claims of the Buyer against the Seller, prior consent is not required if the Seller has no protectable interest in excluding assignment or if the Buyer’s legitimate interests in the assignability of the right outweigh the Seller’s protectable interest in excluding assignment.

III. Prices

1. The price of the purchase object is ex-works, plus any transfer costs and Value Added Tax (VAT) (purchase price), without cash discounts or other deductions. Agreed ancillary services will be charged additionally. In cases where the contract is concluded four or more months before an increase in the VAT rate, we are obliged to adjust the amount accordingly in accordance with § 29 Paragraph 1 and 2 of the German Value Added Tax Act (UStG). Provided we reach a contractual agreement, a compensation obligation beyond § 29 UStG also exists in cases where the contract is concluded less than four months before delivery and delivery occurs after an increase in the VAT rate.

2. Hentschke is entitled to unilaterally adjust agreed prices if and to the extent that Hentschke's procurement costs for products or services necessary for the execution of the order change between the conclusion of the contract and acceptance or delivery. This expressly applies to the procurement costs of sub-suppliers (e.g., body manufacturers). Such a price adjustment is not permitted if a fixed price was expressly agreed upon. If the Buyer is a legal entity under public law, a special fund under public law, or an entrepreneur acting in the exercise of their commercial or independent professional activity at the time of conclusion, the purchase price shall change in the same proportion as the Seller's list prices for the vehicle, optional equipment, and transfer costs plus VAT change up to the day of delivery.

3. The discounts listed in the contract can only be granted if the stated sales conditions are met. These include, among others, the conditions regarding the identity of the holder upon vehicle registration and the timely transmission of relevant customer data, such as the submission of legible copies of the registration certificate Part I, trade license, or disability certificate within 5 days of vehicle registration. Failure to comply with this contractual provision leads to the loss of all discounts (see also §IX).

4. Ancillary services, such as vehicle registration, vehicle transfer/transport, extended warranties, etc., only become part of the contract if they are specified in writing.

IV. Payment

1. The purchase price and prices for ancillary services are due for payment upon handover of the purchase object and the handing over or sending of the invoice.

2. The Buyer may only offset claims against the Seller if the Buyer’s counter-claim is undisputed or legally established. This does not include counter-claims of the Buyer arising from the same purchase agreement. A right of retention may only be asserted if it is based on claims from the same contractual relationship.

V. Delivery and Default

1. Delivery dates and periods, which may be agreed upon as binding or non-binding, must be stated in text form. Delivery periods begin upon conclusion of the contract.

2. The Buyer may request the Seller to deliver six weeks after a non-binding delivery date or delivery period has passed. This period is reduced to 10 days (two weeks for commercial vehicles) for vehicles in the Seller's stock. Upon receipt of this request, the Seller is in default. If the Buyer is entitled to compensation for damages caused by delay, this is limited to a maximum of 5% of the agreed purchase price in the event of slight negligence on the part of the Seller.

3. If the Buyer further wishes to withdraw from the contract and/or claim damages instead of performance, they must set a reasonable grace period for delivery after the relevant period according to Clause 2, Sentence 1 or 2 of this section has expired. If the Buyer is entitled to damages instead of performance, the claim is limited to a maximum of 25% of the agreed purchase price in the case of slight negligence. If the Buyer is a legal entity under public law, a special fund under public law, or an entrepreneur acting in the exercise of their commercial or independent professional activity, damage claims instead of performance are excluded in cases of slight negligence. If delivery becomes impossible by chance while the Seller is in default, the Seller shall be liable within the aforementioned liability limits. The Seller shall not be liable if the damage would have occurred even if delivery had been made on time.

4. If a binding delivery date or period is exceeded, the Seller is in default immediately. The Buyer's rights are then determined by Clause 2, Sentence 4 and Clause 3 of this section.

5. The liability limitations and exclusions in this section do not apply to damages resulting from a grossly negligent or intentional breach of duties by the Seller, their legal representative, or vicarious agent, nor to injury to life, limb, or health.

6. Force majeure or operational disruptions occurring at the Seller or their suppliers that temporarily prevent the Seller from delivering the purchase object on the agreed date or within the agreed period through no fault of their own shall extend the dates and periods mentioned in Clauses 1 to 4 of this section by the duration of the disruption. If such disruptions lead to a delay in performance of more than four months, the Buyer may withdraw from the contract. Other rights of withdrawal remain unaffected.

7. Design or shape changes, deviations in color, and changes to the scope of delivery by the manufacturer remain reserved during the delivery period, provided the changes or deviations are reasonable for the Buyer taking into account the Seller's interests. If the Seller or manufacturer uses symbols or numbers to designate the order or the purchase object, no rights can be derived from this alone.

VI. Acceptance

1. The Buyer is obligated to accept the purchase object within 14 days of receiving the notice of availability.

2. In the event of non-acceptance, the Seller may exercise their statutory rights. If the Seller claims damages, these shall amount to 15% of the purchase price. The damages shall be set higher or lower if the Seller proves higher damages or the Buyer proves that lower or no damage has occurred.

VII. Retention of Title

1. The purchase object remains the property of the Seller until all claims due to the Seller under the purchase agreement are settled.
If the Buyer is a legal entity under public law, a special fund under public law, or an entrepreneur acting in the exercise of their commercial or independent professional activity, the retention of title shall also remain in effect for claims of the Seller against the Buyer from the ongoing business relationship until claims related to the purchase are settled. At the Buyer's request, the Seller is obligated to waive the retention of title once the Buyer has incontestably fulfilled all claims related to the purchase object and adequate security exists for the remaining claims from the ongoing business relationship. During the duration of the retention of title, the Seller is entitled to possession of the Registration Certificate Part II.

2. If the Buyer fails to pay the purchase price or costs for ancillary services when due or in accordance with the contract, the Seller may withdraw from the contract and/or, in the event of a culpable breach of duty by the Buyer, claim damages instead of performance if they have unsuccessfully set a reasonable deadline for performance, unless setting a deadline is unnecessary according to statutory provisions. If the Seller is entitled to damages instead of performance and takes back the purchase object, both parties agree that the Seller shall credit the Buyer with the common sales value of the object at the time of repossession. At the request of the Buyer, which can only be made immediately after repossession, a publicly appointed and sworn expert (e.g., from DAT) shall determine the common sales value. The Buyer bears the necessary costs of repossession and disposal. Disposal costs are set at 5% of the common sales value without further proof, unless higher or lower costs are proven.

3. As long as the retention of title exists, the Buyer may neither dispose of the purchase object nor contractually grant usage to third parties.

VIII. Liability for Material Defects and Defects of Title

1. Claims of the Buyer due to material defects and defects of title shall expire in accordance with statutory provisions two years after delivery. Notwithstanding this, a limitation period of one year applies if the Buyer is a legal entity under public law, a special fund under public law, or an entrepreneur acting in the exercise of their commercial or independent professional activity.

2. The reduction of the limitation period in Clause 1, Sentence 2 does not apply to damages resulting from a grossly negligent or intentional breach of duties by the Seller, their legal representative, or vicarious agent, nor to injury to life, limb, or health.

3. If the Seller is liable for damage caused by slight negligence according to statutory provisions, the Seller's liability is limited as follows:

Liability exists only in the event of a breach of essential contractual obligations (cardinal obligations), such as those which the contract intends to impose on the Seller according to its content and purpose or whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the Buyer regularly relies and may rely. This liability is limited to the typical damage foreseeable at the time of contract conclusion. The personal liability of legal representatives, vicarious agents, and employees of the Seller for damages caused by slight negligence is excluded. Clause 2 of this section applies accordingly to the aforementioned limitation and exclusion of liability.

4. Regardless of any fault on the part of the Seller, any liability of the Seller in the event of fraudulent concealment of a defect, from the assumption of a guarantee or procurement risk, and under the Product Liability Act remains unaffected.

5. If a defect is to be rectified, the following applies:

a) The Buyer may assert claims for rectification with the Seller or with other workshops recognized by the manufacturer/importer for the servicing of the purchase object; in the latter case, the Buyer must inform the Seller immediately if the first rectification attempt was unsuccessful. In the case of verbal notification of claims, the Buyer must be provided with a confirmation of receipt in text form.

b) If the purchase object becomes inoperable due to a material defect, the Buyer must contact the nearest workshop recognized by the manufacturer/importer for servicing.

c) For parts installed during rectification, the Buyer may assert claims for material defects based on the purchase agreement until the expiration of the limitation period of the purchase object.

d) Replaced parts become the property of the Seller.

6. An obligation to provide updates for digital elements is excluded, contrary to the statutory default rule. Insofar as the Buyer is a consumer within the meaning of § 13 BGB, the statutory regulations apply to material and title defects in goods with digital elements rather than the provisions of this section.

IX. Liability for Other Claims

1. Statutory limitation periods apply to other claims of the Buyer not regulated in Section VIII "Liability for Material Defects and Defects of Title".

2. Liability for delay in delivery is conclusively regulated in Section IV "Delivery and Default". For other damage claims against the Seller, the provisions in Section VIII Clauses 3 and 4 apply accordingly.

3. If the Buyer is a consumer within the meaning of § 13 BGB and the subject matter of the contract also includes the provision of digital content or digital services, where the new vehicle can fulfill its function even without these digital products, the statutory provisions of §§ 327 ff BGB apply to these digital products.

X. Place of Jurisdiction

1. For all current and future claims arising from the business relationship with merchants, including bill of exchange and check claims, the exclusive place of jurisdiction is the registered office of the Seller.

2. The same place of jurisdiction applies if the Buyer has no general place of jurisdiction in Germany, relocates their residence or usual place of abode outside of Germany after conclusion of the contract, or if their residence or usual place of abode is unknown at the time the action is brought. Otherwise, for claims by the Seller against the Buyer, the Buyer's place of residence shall be the place of jurisdiction.

XI. Severability Clause

Should individual provisions of a contract or the GTC-NV between Hentschke and a customer be or become ineffective or unenforceable, the validity of the remaining provisions shall remain unaffected.

XII. Notice according to § 36 Consumer Dispute Resolution Act (VSBG)

The Seller will not participate in dispute resolution proceedings before a consumer arbitration board within the meaning of the VSBG and is not obliged to do so.

XIII. Data Protection Notices

The Seller collects and processes data from the Buyer regarding the respective business transactions, which also includes personal data. Corresponding information on data protection according to Art. 13 EU General Data Protection Regulation (GDPR) can be accessed under the following link: Privacy Policy

XIV. Data Transfer to Financial Service Providers

The Buyer is informed that their data collected during the conclusion of the purchase agreement (e.g., buyer data, purchase object, price, payment terms, etc.) may be passed on to financial service providers (e.g., banks, credit insurers, etc.) within the scope of contract fulfillment for the purpose of the Seller's refinancing.

Bestattungswagen Hentschke GmbH & Co.KG Terms and Conditions for the Sale of Used Vehicles (Status: 02/2022)

I. Scope of Application

1. These General Terms and Conditions for the Sale of Used Vehicles (hereinafter "AGWB") apply to all contractual relationships between Bestattungswagen Hentschke GmbH & Co.KG (hereinafter "Hentschke") and its customers, which involve deliveries and services of any kind provided by Hentschke to customers.

2. Offers, sales, and deliveries are made exclusively on the basis of the AGWB reproduced below in their respective latest version. In addition, the AGWB are freely accessible at any time on the internet at www.bestattungswagen.de and can be saved and printed by the purchaser/buyer in a reproducible form.

3. These AGWB also apply as a framework agreement for all future transactions regarding the sale and/or delivery of products to the same purchaser/buyer, without the need to refer to them again in each individual case.

4. Purchasing conditions of the purchaser/buyer are hereby expressly rejected. Deviating agreements to these AGWB shall only apply if – and insofar only for the specific case concerned – they have been confirmed in writing by Hentschke as a supplement to these AGWB. This requirement for confirmation applies in every case, for example, even if Hentschke carries out the delivery to the purchaser/buyer without reservation while being aware of the purchaser's/buyer's purchasing conditions. There are no verbal subsidiary agreements at the time of conclusion of the contract.

5. Individual agreements made expressly with Hentschke by the buyer in specific cases (including subsidiary agreements, supplements, and amendments to these AGWB) shall – insofar as they were made after the conclusion of the contract – take precedence over these AGWB in any case. For the content of such individual agreements, a written contract or – if such a contract does not exist – our written confirmation to the purchaser shall be authoritative.

II. Conclusion of Contract/Transfer of Rights and Obligations of the Buyer

1. The buyer is bound to the order for a maximum of 10 days, or 2 weeks for commercial vehicles. The purchase contract is concluded when the seller confirms acceptance of the order of the specified purchase object in text form within the respective periods mentioned or executes the delivery. However, the seller is obliged to inform the purchaser immediately if they do not accept the order.

2. Transfers of rights and obligations of the buyer from the purchase contract require the consent of the seller in text form. This does not apply to a monetary claim of the buyer against the seller. For other claims of the buyer against the seller, prior consent of the seller is not required if the seller has no protectable interest in an exclusion of assignment or if the legitimate interests of the buyer in the assignability of the right outweigh the seller's protectable interest in an exclusion of assignment.

III. Payment

1. The purchase price and prices for ancillary services are due for payment upon handover of the purchase object and handing over or sending of the invoice.

2. The buyer may only set off against claims of the seller if the buyer's counterclaim is undisputed or if a legally binding title exists. This excludes counterclaims of the buyer arising from the same purchase contract. A right of retention can only be asserted insofar as it is based on claims from the same contractual relationship.

IV. Delivery and Delay in Delivery

1. Delivery dates and delivery periods, which can be agreed upon as binding or non-binding, must be specified in text form. Delivery periods begin upon conclusion of the contract.

2. Ten days (two weeks for commercial vehicles) after a non-binding delivery date or a non-binding delivery period has been exceeded, the buyer may request the seller to deliver. Upon receipt of the request, the seller shall be in default. If the buyer is entitled to compensation for damages caused by delay, this shall be limited to a maximum of 5% of the agreed purchase price in the event of slight negligence on the part of the seller.

3. If the buyer also wishes to withdraw from the contract and/or demand damages instead of performance, they must set a reasonable period for delivery for the seller after the expiry of the relevant period according to point 2, sentence 1 of this section. If the buyer is entitled to damages instead of performance, the claim shall be limited to a maximum of 10% of the agreed purchase price in the case of slight negligence. If the buyer is a legal entity under public law, a special fund under public law, or an entrepreneur acting in the exercise of their commercial or independent professional activity when concluding the contract, claims for damages in the case of slight negligence are excluded. If delivery becomes impossible for the seller by chance while they are in default, they shall be liable within the liability limits agreed above. The seller shall not be liable if the damage would also have occurred in the case of timely delivery.

4. If a binding delivery date or a binding delivery period is exceeded, the seller is in default as soon as the delivery date or delivery period is exceeded. The buyer's rights are then determined according to point 2, sentence 3 and point 3 of this section.

5. The liability limitations and exclusions of this section do not apply to damages based on a grossly negligent or intentional breach of duties by the seller, their legal representative, or their vicarious agent, as well as in the event of injury to life, limb, or health.

6. Force majeure or operational disruptions occurring at the seller or their suppliers, which temporarily prevent the seller through no fault of their own from delivering the purchase object on the agreed date or within the agreed period, shall change the dates and periods mentioned in points 1 to 4 of this section by the duration of the performance disruptions caused by these circumstances. If such disruptions lead to a postponement of performance for more than four months, the buyer may withdraw from the contract. Other rights of withdrawal remain unaffected.

V. Acceptance

1. The buyer is obliged to accept the purchase object within eight days of receipt of the notification of availability. In the event of non-acceptance, the seller may exercise their legal rights.

2. If the seller demands damages, these shall amount to 10% of the purchase price. The damages shall be set higher or lower if the seller proves higher damage or the buyer proves that less or no damage at all has occurred.

VI. Retention of Title

1. The purchase object remains the property of the seller until the claims entitled to the seller on the basis of the purchase contract have been settled. If the buyer is a legal entity under public law, a special fund under public law, or an entrepreneur acting in the exercise of their commercial or independent professional activity when concluding the contract, the retention of title also remains in effect for claims of the seller against the buyer from the ongoing business relationship until the settlement of claims entitled in connection with the purchase. At the request of the buyer, the seller is obliged to waive the retention of title if the buyer has unappealably fulfilled all claims related to the purchase object and there is adequate security for the remaining claims from the ongoing business relationship. During the period of retention of title, the seller has the right to possession of the registration certificate part II (Zulassungsbescheinigung Teil II).

2. If the buyer does not pay the due purchase price and prices for ancillary services or does not do so in accordance with the contract, the seller may withdraw from the contract and/or, in the event of a culpable breach of duty by the buyer, demand damages instead of performance if they have unsuccessfully set a reasonable period for performance for the buyer, unless the setting of a deadline is unnecessary according to legal provisions.

3. As long as the retention of title exists, the buyer may neither dispose of the purchase object nor contractually grant use to third parties.

VII. Liability for Material Defects and Defects of Title

1. If the buyer is a consumer within the meaning of § 13 BGB (German Civil Code), a reduction of the two-year limitation period for material defects and defects of title to no less than one year from delivery of the purchase object to the buyer can only be effectively agreed upon if the buyer was specifically informed of the reduction of the limitation period before submitting their contractual declaration and the reduction is expressly and separately agreed upon in the contract. For material and legal defects in goods with digital elements, the provisions of this section do not apply to the digital elements, but rather the statutory regulations.

2. If the buyer is a legal entity under public law, a special fund under public law, or an entrepreneur acting in the exercise of their commercial or independent professional activity when concluding the contract, the sale takes place under exclusion of any claims for material defects and defects of title. This exclusion does not apply to damages based on a grossly negligent or intentional breach of duties by the seller, their legal representative, or their vicarious agent, as well as in the event of injury to life, limb, or health.

3. If the seller is liable for damage caused by slight negligence due to legal provisions, the seller's liability is limited: Liability exists only in the event of a breach of essential contractual obligations, such as those which the purchase contract specifically intends to impose on the seller according to its content and purpose or whose fulfillment makes the proper execution of the purchase contract possible in the first place and on whose compliance the buyer regularly relies and may rely. This liability is limited to the typical damage foreseeable at the time of conclusion of the contract. The personal liability of the legal representatives, vicarious agents, and employees of the seller for damages caused by them through slight negligence is excluded. This does not apply to damages based on a grossly negligent or intentional breach of duties by the seller, their legal representative, or their vicarious agent, as well as in the event of injury to life, limb, or health.

4. Regardless of any fault on the part of the seller, any liability of the seller in the event of fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk, and according to the Product Liability Act remains unaffected.

5. If a defect rectification is to be carried out, the following applies:
a) The buyer must assert claims for material defects with the seller. In the case of verbal notification of claims, a written confirmation of receipt of the notification must be handed over to the buyer.
b) If the purchase object becomes inoperable due to a material defect, the buyer may, with the prior consent of the seller, contact another master vehicle workshop.
c) For parts installed within the scope of a defect rectification, the buyer may assert material defect claims based on the purchase contract until the expiry of the limitation period of the purchase object. Replaced parts become the property of the seller.

VIII. Liability for Other Claims

1. For other claims of the buyer not regulated in Section VII "Liability for Material Defects and Defects of Title", the statutory limitation periods shall apply.

2. Liability for delay in delivery is conclusively regulated in Section IV "Delivery and Delay in Delivery". For other claims for damages against the seller, the provisions in Section VII "Liability for Material Defects and Defects of Title", points 3 and 4 shall apply accordingly.

3. If the buyer is a consumer within the meaning of § 13 BGB and the subject matter of the contract is also the provision of digital content or digital services, whereby the vehicle can fulfill its function even without these digital products, the statutory provisions of §§ 327 ff BGB apply to this digital content or digital services.

IX. Jurisdiction

1. For all present and future claims arising from the business relationship with merchants, including bill of exchange and check claims, the exclusive place of jurisdiction is the registered office of the seller.

2. The same place of jurisdiction applies if the buyer does not have a general place of jurisdiction in Germany, moves their domicile or usual place of residence out of Germany after the conclusion of the contract, or if their domicile or usual place of residence is not known at the time the action is brought. In all other respects, for claims of the seller against the buyer, the buyer's domicile shall be the place of jurisdiction.

X. Out-of-court Dispute Resolution

1. Vehicle Arbitration Boards (Kfz-Schiedsstellen)
a) If the automotive business displays the master sign "Meisterbetrieb der Kfz-Innung" or the basic sign "Mitgliedsbetrieb der Kfz-Innung," the parties may, in the event of disputes arising from the purchase contract for used vehicles with a permissible total weight of no more than 3.5 t - with the exception of the purchase price - call upon the vehicle arbitration board responsible for the seller's registered office. The application must be made immediately after knowledge of the point of dispute, at the latest one month after the expiry of the limitation period for material and legal defects according to Section VI, by submitting a written statement (application) to the vehicle arbitration board.
b) The decision of the vehicle arbitration board does not exclude the right to legal recourse.
c) By calling upon the vehicle arbitration board, the limitation period is suspended for the duration of the proceedings.
d) The procedure before the vehicle arbitration board is governed by its rules of procedure and business, which will be handed over to the parties by the vehicle arbitration board upon request.
e) Calling upon the vehicle arbitration board is excluded if legal action has already been taken. If legal action is taken during an arbitration procedure, the vehicle arbitration board shall cease its activity.
f) No costs are charged for the use of the vehicle arbitration board.

2. Notice pursuant to § 36 Consumer Dispute Resolution Act (VSBG): The seller will not participate in a dispute resolution procedure before a consumer arbitration board within the meaning of the VSBG and is not obliged to do so.