General Terms and Conditions
of Alltrucks GmbH & Co KG, Perchtinger Strasse 6, 81379 Munich, Germany
1.1 These General Terms and Conditions ("GTC") apply to all transactions and orders between Alltrucks GmbH & Co KG ("ALLTRUCKS") and its customers (in particular ALLTRUCKS partners) ("Customers"), also with regard to all services belonging to the ALLTRUCKS range of services, such as licensing, training, training and hotline offers, which can also be ordered via the ALLTRUCKS online portal, and in particular also to the respective workshop contract with the ALLTRUCKS partners themselves. They shall also apply in their respective version as a framework agreement for future contracts and orders with the same customer, without an express reference to the GTC having to be made in each individual case.
1.2 Conflicting or deviating terms and conditions of customers are hereby rejected. They shall only become part of the contract if ALLTRUCKS expressly agrees to them in individual cases. These General Terms and Conditions shall also apply if ALLTRUCKS performs services for the Customer without reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these General Terms and Conditions.
1.3 Individual agreements made with the client in individual cases always take precedence over these General Terms and Conditions. For the content of such individual agreements, a contract in text form or the confirmation of ALLTRUCKS in text form is absolutely necessary.
1.4 The client can only be a natural or legal person or a partnership with legal capacity, which acts in the exercise of its commercial or independent professional activity when concluding a legal transaction (entrepreneur in the sense of § 14 BGB).
2. Scope and Conclusion of Contract
2.1 The subject of the order is the agreed service, not a specific (economic) success. ALLTRUCKS shall be entitled to make use of employees, competent third parties and data-processing companies to carry out the order.
2.2 All services offered by ALLTRUCKS, including those distributed via the online portal operated by ALLTRUCKS, constitute legally non-binding and non-binding offers and serve as an invitation to submit an offer (invitatio ad offerendum).
2.3 ALLTRUCKS' offers shall only be binding in exceptional cases and in individual cases if they are expressly designated as binding by ALLTRUCKS. ALLTRUCKS shall only be bound by binding offers up to the point in time specified in the offer, but no later than four weeks after dispatch of the offer.
2.4 Binding contracts shall be concluded by a written agreement between ALLTRUCKS and the customer, the actual commencement of the relevant order execution by ALLTRUCKS or the final activation of individual order fields by the customer, which are expressly marked as order fields for binding orders in the ALLTRUCKS online portal. If the Customer orders the goods via the online portal, ALLTRUCKS shall confirm receipt of the order without delay.
3. Duties of the client
3.1 The Customer shall indemnify both ALLTRUCKS and its shareholders against all claims asserted by third parties against ALLTRUCKS or its shareholders as a result of measures taken by the Customer, the performance of business and/or other conduct by the Customer, in particular as a result of defective performance of workshop services by the Customer, and shall reimburse ALLTRUCKS or its shareholders without delay for all expenses, damages and other disadvantages incurred as a result thereof.
3.2 ALLTRUCKS is entitled to assign the customer to different performance classes on the basis of the respective results of the audit and partner evaluations. This forms the basis for subsequent development and improvement measures by the client and the workshop concept.
3.3 The audit and partner evaluation is regularly reviewed and further developed by ALLTRUCKS. The client will be informed about the changes and the current version in good time. If the client does not achieve the specified minimum level in the audit and partner evaluation, the audit and partner evaluation shall be repeated within three months at the expense and expense of the client.
4. Prices and terms of payment
4.1 Unless otherwise agreed or not already issued as a gross price via the online portal, agreed prices are net prices in EUR plus the applicable sales tax. Customs duties or other charges, including those incurred subsequently, shall be invoiced to the customer at a later date. The agreed price is due for payment immediately.
4.2 ALLTRUCKS reserves the right to reasonably change agreed prices if cost reductions or cost increases occur after the conclusion of the contract. ALLTRUCKS shall prove this to the customer upon request.
4.3 The deduction of discount requires a special agreement in text form.
4.4 If the customer is in default of payment or if there are reasonable doubts as to his ability to pay, ALLTRUCKS shall be entitled to demand immediate payment of all claims against the customer arising from the business relationship, to withhold any outstanding services in whole or in part or to withdraw from the existing contracts in whole or in part. In the event of default in payment, ALLTRUCKS shall be entitled to charge default interest in the amount of 9 percentage points above the base interest rate, unless the Customer can prove that the loss was lower or ALLTRUCKS higher.
4.5 The customer shall only be entitled to rights of set-off, retention and refusal of performance if his counterclaims have been legally established, are undisputed or acknowledged. Furthermore, the client is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5. Cancellation conditions for classroom seminars and training courses
5.1 Courses and training courses offered by ALLTRUCKS, which the client can book via the online portal, can be cancelled by the client free of charge up to 28 days before the start of the event. If the client cancels the contract up to 15 days before the start of the event, 50% of the agreed fee will be due.
5.2 If the client cancels the contract later than 15 days before the start of the event or if the client does not appear on the date of the event, the full payment will be due.
5.3 In the event of cancellation of courses or training due to illness of instructors, force majeure or other unforeseeable events, the client shall not be entitled to demand that the relevant event be held. ALLTRUCKS has the right to reschedule the event within the four weeks following the original date. If there is no alternative date, no remuneration will be due.
5.4 ALLTRUCKS also has the right to cancel booked courses and trainings at any time, at the latest up to 7 days before the start of the event, without giving any further reasons.
6. Default of acceptance
If the customer defaults on accepting the other services offered by ALLTRUCKS, or if the customer fails to comply with any other obligation to cooperate, ALLTRUCKS shall be entitled to set the customer a reasonable deadline with a threat of termination. ALLTRUCKS shall be entitled to terminate the order without notice if the deadline expires without result. ALLTRUCKS' claim to compensation for the additional expenses incurred as a result of the Customer's default or failure to cooperate and for the damage caused shall remain unaffected, even if ALLTRUCKS does not exercise its right to terminate the contract.
7. Warranty and Liability
7.1 Unless otherwise agreed in individual cases, liability for damages caused by ALLTRUCKS as a result of the performance relationship between the customer and ALLTRUCKS shall be limited to a maximum of EUR 100,000.00 per individual case. In the event of damage, ALLTRUCKS shall be entitled to assign any claim for indemnity against the insurer to the customer in a manner that releases him from his obligations.
7.2 ALLTRUCKS accepts no liability for the accuracy and completeness of the information and data ("Information") made available to the Client. Changes, country-specific variants, errors or mistakes regarding the information cannot be completely excluded.
7.3 The Customer must ensure that both the vehicle identification and the equipment of the vehicle or product to be repaired comply with the requested information. ALLTRUCKS accepts no liability for damage caused by incorrect, incomplete or misinterpreted information. ALLTRUCKS shall also not be liable if the customer no longer uses current information which is already available in an updated version. If the client creates print versions of information, he must always check that it is up-to-date.
7.4 ALLTRUCKS shall not be liable for damages resulting from failure to comply with the following obligation:
- the client will only use trained personnel for the execution and related work;
- the customer will only use suitable testing equipment or tools;
- the customer carries out a function test with the vehicle after completion of the repair work.
7.5 The limitation of liability shall not apply to damages resulting from injury to life, limb or health resulting from an intentional or grossly negligent breach of duty by ALLTRUCKS, a legal representative or vicarious agent of ALLTRUCKS and/or to other damages resulting from an intentional or grossly negligent breach of duty by ALLTRUCKS, a legal representative or vicarious agent of ALLTRUCKS in respect of material contractual obligations (so-called cardinal obligations).
7.6 A claim for damages may only be asserted within a preclusive period of one year after the Customer has become aware of the damage and of the event giving rise to the claim, unless it is a matter of damage arising from injury to life, limb or health which is based on an intentional or grossly negligent breach of duty by ALLTRUCKS and/or it is not a matter of other damage which is based on an intentional or grossly negligent breach of duty by ALLTRUCKS, a legal representative or vicarious agent of ALLTRUCKS. Knowledge is equal to grossly negligent ignorance.
7.7 Insofar as damage is covered by an insurance policy taken out by the customer for the damage in question, ALLTRUCKS shall only be liable for any associated disadvantages of the customer (e.g. higher insurance premiums or interest disadvantages) until the damage has been settled by the insurance company.
7.8 The right of ALLTRUCKS to assert the plea of limitation shall remain unaffected.
8. Rights of use
8.1 All rights to all services provided by ALLTRUCKS for the customer, including all materials provided (e.g. presentations, designs, ideas, sketches, concepts, etc.), including individual parts thereof, shall remain the property of ALLTRUCKS and may be reclaimed by ALLTRUCKS at any time. ALLTRUCKS shall grant the Customer rights of use to the services performed for the PURCHASER within the scope of the respective order in accordance with these GTC, a separate contract between ALLTRUCKS and the Customer or a separate user agreement.
8.2 Changes to the services provided by ALLTRUCKS by the customer shall only be permitted with the express consent of ALLTRUCKS.
8.3 The use of any material provided by ALLRTRUCKS within the scope of the services provided, which goes beyond the originally agreed purpose and scope of use, is – regardless of whether this service is protected by copyright – only permitted with the express consent of ALLTRUCKS. In particular, any processing, reproduction, transmission or other dissemination beyond the agreed contractual use is prohibited without the express consent of ALLTRUCKS.
8.4 The customer shall not be entitled to transfer any rights of use to third parties in respect of the services provided by ALLTRUCKS for the customer in any form whatsoever.
8.5 ALLTRUCKS shall be entitled to use the services provided within the framework of its own advertising, also on the Internet and within the framework of competitions.
9. Insurance cover
The client is obliged to provide sufficient insurance cover customary in the market. This applies in particular with regard to the conclusion of liability insurance to ensure the fulfilment of all obligations arising from the contractual relationship with ALLTRUCKS. The Customer shall provide ALLTRUCKS with proof of the existence of the relevant insurance cover upon request.
10. Confidentiality, confidentiality towards third parties
10.1 Alltrucks is authorized to collect personal data of the customer within the scope of the intended purpose of the placed orders by machine, to process them in an automated file and to transfer them to a service computer center for further order data processing as well as to companies affiliated with ALLTRUCKS within the meaning of § 15 AktG (German Stock Corporation Act). The customer hereby expressly agrees to the disclosure of his personal data and releases ALLTRUCKS from its duty of confidentiality. Upon request, ALLTRUCKS will provide the customer with information about the stored data. He has the right to correct, block and delete this data in accordance with the statutory provisions.
10.2 This also applies to personal data of employees of the client. The Client must ensure that there is a valid agreement between the Client and its own employees in which the employee agrees that the Client may transfer to ALLTRUCKS or another third party commissioned by ALLTRUCKS the data necessary for the provision of the services offered by ALLTRUCKS and that such data shall be stored there, provided that this data is for the provision of the services and for the creation of a service history. Upon request, ALLTRUCKS will provide the customer's employee with information on the stored data. He has the right to correct, block and delete this data in accordance with the statutory provisions.
10.3 Insofar as the customer is subject to a duty of confidentiality towards third parties, he shall be obliged to ensure that these third parties release him from this duty of confidentiality before passing on data from third parties to ALLTRUCKS.
10.4 ALLTRUCKS undertakes to maintain secrecy with regard to any confidential information of the customer which becomes known to it in the course of the cooperation. The same shall apply to the customer with regard to confidential information about ALLTRUCKS that has become known to him in the course of the cooperation. The obligation to secrecy lasts beyond the end of the contract and also applies if cooperation is not established.
10.5 The customer undertakes to use the knowledge, documents, aids, information and other items provided or made available to him on the basis of the contractual relationship existing with ALLTRUCKS exclusively for the performance of the tasks assumed by him within the framework of this contract and not to provide or make them available to third parties, nor to use them in the interest of or for the benefit of third parties.
11. Termination of contract for important reason and consequences of termination of contract
11.1 Termination without notice is permissible at any time after prior warning if one party to the contract violates essential provisions of the contract in such a way that the other party to the contract cannot reasonably be expected to continue the contractual relationship until the end of the ordinary period of notice after weighing all circumstances of the individual case.
11.2 In addition, ALLTRUCKS shall be entitled, in addition to the existing statutory rights of termination, to terminate the contract in whole or in part with immediate effect if:
- there are concrete indications that the customer will most likely not fulfil contractual obligations in the manner owed, which ALLTRUCKS depends on the faultless, complete and timely fulfilment of in relation to its contractual partners, or
- the Customer ceases payments to ALLTRUCKS, i.e. permanently and definitively refuses them, or
- a significant deterioration in the financial circumstances of the customer occurs or threatens to occur and the fulfilment of a material contractual obligation towards ALLTRUCKS is thereby jeopardised, or
- The customer may change the owner or management of the customer or if there is a not insignificant change in the participation relationship, unless the customer has notified ALLTRUCKS of this in advance – in the event of a change of owner or management with sufficient proof of qualification – and has received the approval of ALLTRUCKS. Consent will not be withheld if justified ALLTRUCKS interests are not affected, or
- the client does not prove the insurance cover according to clause 9 despite warning
- the client repeatedly fails to meet the required minimum requirements during the regular audit and partner evaluation.
11.3 ALLTRUCKS shall otherwise be entitled to terminate the contract with immediate effect if:
- the principal becomes insolvent, or
- the customer is threatened with insolvency or an over-indebtedness of the customer becomes apparent, or
- the client applies for the opening of insolvency proceedings or comparable proceedings to settle debts in respect of the assets or business of the client.
11.4 Any claims of the customer based on an extraordinary termination by ALLTRUCKS for the reasons stated in clauses 11.2 and 11.3 are excluded.
11.5 At the end of the contractual relationship, ALLTRUCKS shall immediately remove all designations, names, brands and other identifications or, if the customer's property provided with such designations is to continue to be used, render them unrecognisable. Documents, aids and other items and all other items provided free of charge must be returned to ALLTRUCKS immediately and without being requested to do so.
11.6 The Customer shall refrain from doing anything that could indicate the continuation of the contractual relationship with ALLTRUCKS, such as in particular the continued use of the graphic design of the ALLTRUCKS marking with regard to its colour and form, irrespective of its lettering.
11.7 All obligations within the framework of the termination of the contractual relationship shall be fulfilled irrespective of whether the customer has or asserts claims against ALLTRUCKS. In the event of non-performance within 30 days of the end of the contractual relationship, ALLTRUCKS shall be entitled to demand from the customer a contractual penalty of EUR 10,000.00 for each case of non-compliance, regardless of fault.
12. Final provisions
12.1 German law applies exclusively. Only the German version of these terms and conditions is binding.
12.2 The exclusive place of jurisdiction for all disputes arising from the contractual relationship is Munich. ALLTRUCKS shall be entitled to sue the customer at any other legal venue.
12.3 Legally relevant declarations and advertisements to be submitted by the customer to ALLTRUCKS after conclusion of the contract must be in text form in order to be effective.
12.4 References to the legal regulations have only clarifying meaning. Even without such clarification, the statutory provisions shall apply insofar as they are not expressly excluded in these GTC as far as possible.
12.5 If one or more clauses of these terms and conditions are invalid, this shall not affect the validity of the remaining clauses. The parties already agree that instead of the invalid clause, a clause shall be deemed to have been agreed which corresponds as closely as possible to the meaning and purpose of the invalid clause.
Status as of: 30 Nov 2015