AUTEC GmbH & Co. KG
A. General Provisions, Quotes, Entering into a Contract, and Contents
1. Where the term “seller” is used below, this is a reference to Autec GmbH & Co. KG; correspondingly, “buyer” refers to Autec GmbH & Co. KG’s customer.
2. All quotes, unless they have a time limitation, are subject to change. To be legally valid, orders must be accepted by Autec in a written confirmation whose contents are of defining importance to the contractual relationship, or in the form of direct delivery. Any conditions to the contrary on the buyer’s order form are hereby declared null and void. In this context we refer to the decision of the German Constitutional Court dated 24th September 1952 (II Civil Law 305/51).
3. The contract is entered into subject to correct and duly provided services by our suppliers; this only applies in cases in which we have agreed a congruent substitute transaction with the supplier and are thus not responsible for mistakes in delivery or for non-delivery. We will immediately inform the customer of any delay in delivery or of non-delivery and will reimburse the customer for any payment already made. Should the goods ordered prove not to be available or not deliverable within a suitable timeframe, we reserve the right to cancel the contract.
4. Ancillary agreements, supplements and modifications to the contract must be confirmed by us in writing. This requirement that changes are made in writing also applies to the nullification of the provision requiring written notification.
1. Prices are in EUROS (€) unless our order confirmation explicitly states a price in a foreign currency.
2. The prices stated by us are net prices unless explicitly designated as gross prices. In addition to the stated price, the customer agrees to pay VAT at the current statutory rate.
3. Changes in prices are only permitted if a period of more than four months elapses between the contract being entered into and the agreed delivery date; in this case, the price stated by the seller as valid on the day of the delivery applies. Changes in the amount of VAT are grounds for either party to request a change in price.
4. If no agreement to the contrary is reached, shipping costs for the goods will be invoiced. The minimum order amount is four units from each of the product groups we sell. If the customer orders fewer units, additional shipping costs may be invoiced.
5. In general, our prices are ex works and do not include packaging, shipping and other costs, unless an individual agreement to the contrary has been reached.
1. Confirmation notifications of delivery dates are non-binding. In each case, the confirmation is subject to us receiving correct and duly provided deliveries from our suppliers. Conditions to the contrary apply only if we explicitly confirm them in writing. Adherence to a specified delivery date requires that all technical and business-related issues are settled by the parties and that the customer fulfils all obligations to cooperate (providing the necessary authorisations, technical documentation, etc.). If the customer is in default of its obligations, the delivery date is correspondingly postponed.
2. The delivery date has been adhered to if the ready-to-operate product has been brought to the delivery service for shipping within the agreed period for delivery and/or services. If the delivery is delayed for reasons for which the customer is responsible, the delivery date has been adhered to if we have sent notification that the product is ready for shipping.
3. All products are shipped at the buyer’s expense and risk; we provide insurance only when explicitly requested by the buyer, with the buyer bearing the expense.
4. In cases of force majeure or other unforeseen impediments for which the seller is not responsible, such as riots, mobilisation, and war; or in cases of disruption in business operations for which the seller is not responsible, such as strikes or lock-outs, this does not constitute default in delivery. If the seller cannot be reasonably expected to make the delivery due to disruptions of this kind, or if delivery is impossible, the seller may cancel the contract. The buyer has the same right if it cannot be reasonably expected to accept the delivery due to a delay.
5. If we as the seller are in default, after the expiry of a reasonable subsequent period set by the buyer, the buyer may cancel the contract or request reimbursement for damages in lieu of the product/services. However, the buyer is only entitled to damages claims if the seller acted with intent or gross negligence. In cases such as those described in this paragraph, all claims to delivery are excluded.
6. We are entitled to make partial deliveries, if this is reasonable for the customer.
7. Before delivering an order, the seller reserves the right to make changes in the design and/or model of the goods in question in a general way, where these changes serve to update the products technically, within the delivery period, as long as the goods are not significantly modified and the buyer can be reasonably expected to accept the changes. We are not responsible for the circumstances described above even if they occur during a period in which we are already in default of delivery. The buyer has no claim to compensation for delayed delivery in cases such as those described above.
8. If a product is specially made, the buyer is specifically obligated to conduct a technical acceptance procedure.
9. The seller reserves all ownership and intellectual property rights to drafts, sketches or drawings, and other documentation. They may only be shared with third parties with the seller’s consent.
D. Collateral, Retention of Ownership
1. Goods that have been delivered remain the property of the seller until the buyer has made full payment. The buyer exercises the right of immediate possession on behalf of the seller. The buyer cannot obtain ownership rights to the goods in question in accordance with Para. 950 of the German Civil Code if the goods in question are processed such that a new object is produced. Any processing is done by the buyer on behalf of the seller. The processed goods serve as collateral for the prospective seller only up to the value of the goods in question. Should the goods be processed and combined by the buyer with other goods that do not belong to the seller, the seller has partial ownership rights to the new object, proportionate to the value of the goods owned by the seller in relation to the other goods at the time of processing. Otherwise, the same applies to the new object obtained after processing as to the goods owned by the seller; the new object is also subject to the seller’s right of ownership as stipulated in the conditions above.
2. The buyer hereby assigns to the seller any claims from the re-sale of the goods, which remain the property of the seller, regardless of whether the goods in question have been re-sold with or without additional processing and whether they have been re-sold to one more buyers. The claim thus assigned serves as collateral for the prospective seller only up to the value of the goods in question. If the goods in question are re-sold by the buyer along with other goods that do not belong to the seller, whether with or without processing, claims to the amount of the re-sale are assigned only up to the amount of the value of the goods in question that are being sold in this transaction along with other goods, or which are part of the goods being sold.
3. The buyer is only authorised and entitled to re-sell the goods in question, which remain the property of the seller, on the condition that claims from the re-sale in accordance with (2) above are transferred to the seller. The buyer has no other rights to dispose of the goods in question.
4. The buyer is authorised to collect on any claims from the re-sale of the goods, despite the assignment of these claims. The right of the seller to collect is not affected by the buyer’s authorisation to collect on the claims. However, the seller is not to collect on the claims itself as long as the buyer properly fulfils its payment obligations. On request by the seller, the buyer is to inform the seller of which party now owes the assigned claim in question, and is to inform this party of the assignment.
5. The retention of ownership in accordance with the conditions above remains in place even where individual claims payable to the seller are put on a running account and the account has been balanced and recognised as such.
The retention of ownership by the seller is limited as follows: full payment of all claims payable to the seller resulting from the business transaction is made, ownership of the goods in question is immediately transferred to the buyer, and the assigned claims now belong to the buyer. The seller agrees, according to its own choice, to return the collateral to which it is entitled in accordance with the conditions above if its value exceeds the value of the collateralised claims by 20%, but with the condition that, excepting delivery based on a current account transaction, this return applies only to deliveries or their replacement parts which themselves have been paid in full.
6. The customer is not entitled to pledge the goods as collateral before ownership has been transferred, or to use them as security, or to process or modify them.
7. The customer is to immediately inform us in writing of distraint or any other seizures with regard to the assigned claims or the goods which remain the property of the seller, so that we can take timely and suitable legal action.
1. Unless the seller has stipulated that delivery will take place only with cash on delivery or advance payment of the invoice amount, claims by either party resulting from the business transaction between the seller and buyer are fundamentally subject to the provisions of Para. 355 et. seq. of the German Commercial Code.
2. If no agreement to the contrary is reached, deliveries are made on invoice, with the amount to be paid immediately. Alternatively, the buyer can authorise the seller to withdraw the amount via the SEPA direct debiting scheme. The direct debiting takes place in accordance with the agreed payment date. The deadline for pre-notification is reduced to one day. The buyer agrees to ensure that its account has sufficient funds and to bear any costs that result from debiting failure or chargebacks related to the direct debiting, as long as Autech GmbH & Co. KG did not cause the debiting failure or chargebacks.
3. The seller is entitled to request advance payment from individual customers and for individual contracts, without stating the reasons.
4. For payment to be made at a later date, special agreements must be made in each individual case. The payment date is the day on which the seller has access to and authority to use the monetary amount in question. Payments are to be made in cash with no discount or subtractions, if no agreement to the contrary is reached.
5. The seller explicitly reserves to the right to accept bills of exchange and cheques. Bills of exchange and cheques are only accepted as payment if a corresponding agreement in writing is reached in advance, and are considered payment only after having been honoured or cashed. Any discount fees are to be borne by the buyer. If a bill of exchange is accepted, the seller assumes no risk for due presentation and adduction of the protest. If the bill of exchange is not honoured, the customer is obligated to reimburse us for damages.
If payment is not made when due, interest and costs as generally valid at the major banks will be invoiced; we reserve the right to press any additional claims. All claims payable to the seller, regardless of the validity period of any bills of exchange that have been accepted and credited to the buyer’s account subject to being honoured, are due immediately if the terms of payment are not adhered to or if the seller becomes aware of circumstances which call into question the buyer’s credit standing. The seller is authorised to make any deliveries still due to the buyer for advance payment only and may cancel the contract after the expiry of a suitable subsequent period, and may request damages in lieu of the payment in question. The buyer has no right of retention unless the seller has grossly violated the contract or where counterclaims a court has declared legally valid, or which are uncontested, are payable to the buyer.
6. Should the buyer be in default of payment, it will be charged default interest at the statutory rate. We explicitly reserve the right to charge higher interest fees as damages. In this case, the buyer is free to provide proof that the damages were lower than claimed.
7. The customer may only exercise its right of retention due to counterclaims resulting from the same contract. Where the parties regularly conduct business transactions, each individual order is to be considered as a separate contract. Offsetting amounts against claims payable to us is only permitted if the claims are declared legally valid by a court or have been recognised by us.
F. Warranty Conditions
1. Goods as referred to in this provision does not mean the entire delivery; it refers only to the individual defective product. The seller provides warranty in case of any defects in the goods, including the lack of any functions or properties that had been promised, as follows:
2. The buyer is to notify us immediately of any defects in the goods, in accordance with Para. 377 of the German Commercial Code. If the buyer is not a businessperson as defined by the German Commercial Code, it is to notify us of any obvious defects in the goods within two weeks. This must be done in writing. If defects become apparent, any processing of the goods is to be halted immediately.
3. We are entitled to inspect the alleged defect. If the customer refuses to allow this, we are freed of our warranty obligations.
4. The seller will reclaim defective goods and replace them with non-defective goods. In lieu of this it is also entitled to make subsequent improvements to the goods where suitable. The parties agree that if subsequent improvements are made, any parts removed are to be transferred to our ownership. The delivery of non-defective goods or the remedy of the defect are to take place within a reasonable period, but in any case not less than 14 days. This period is to be adapted according to the product in question and the general practices of the business partner(s) before or subsequent to us in the delivery or supply chain. If the delivery of non-defective goods or remedy of the defect is impossible, the buyer and the seller are entitled to cancel the contract. After the buyer conducts a technical acceptance procedure of the goods without finding any defect, the buyer no longer has the right to lodge a complaint regarding defects that could have been detected during the agreed technical acceptance procedure.
5. Should the seller be in default of the subsequent or replacement delivery, and after a reasonable subsequent period set by the buyer has expired without result due to the seller’s fault, the buyer may cancel the contract if no notification has been received that the goods are ready for shipping by the end of the abovementioned period.
6. The warranty expires two years after the goods have been delivered to the designated address. This does not apply to products that are subject to wear and tear.
7. The warranty includes any costs for shipping and packaging, as well as costs associated with the mounting and/or removal of the seller’s products. The customer is to bear the costs of subsequent delivery and/or improvements if a complaint regarding a defect proves unjustified.
8. The warranty obligation is void if, during the warranty period, replacement parts derived from other companies are used or if our products are modified by third parties. The seller is only liable for difficulties resulting from the regulations regarding legal trademark protection in the case of re-sale or the use of the product if the seller is culpable of fraudulent conduct.
G. Exclusion of Liability
1. The seller is only liable for claims that exceed the warranty, including but not limited to those for consequential and/or subsequent damages and defects, if and to the extent that it can be proven the seller intentionally caused the damage. The seller is not liable for slight negligence. The warranty does not apply at all in cases where products are subjected to wear and tear that exceeds the limitations described in our general or specific documentation (e.g. in the vehicle or tyre classification), or are otherwise improperly used, maintained or repaired, unless the buyer can prove that the improper use of the goods was not the cause of the defect.
In particular, we do not provide warranty where the customer performs the following actions: unsuitable or improper use; defective mounting; defective storage; the effects of normal usage and general wear and tear; defective maintenance; unsuitable equipment and chemical, electrochemical or electrical effects, as long as we are not responsible for the above. The warranty also does not apply to damages that result from failure to adhere to our usage instructions or advice, or from failure to adhere to a users’ or maintenance instructions. In addition, we assume no liability for improperly performed improvement measures or modifications/disassembly of the goods by the customer or by a third party hired by the customer.
2. Statutory limitation regulations apply.
H. Special Conditions, Assignment and Pledging of Collateral, Authorisation to Export
1. Parts sent to us (e.g. goods regarding which a complaint has been made, or samples) which have become unusable due to the use, maintenance, modification or similar actions, or which have been replaced by new parts, are scrapped by Autec except where return shipment upon order is required.
2. The rights and obligations resulting from contracts drawn up subject to these General Terms and Conditions may only be assigned, pledged as collateral or as security with our previous explicit consent having been provided in writing.
3. Export of the products may, due to their type or purpose, be subject to authorisation requirements under German or foreign law. We are not obligated to provide any data or information for these purposes. If products are intended for export, the customer is responsible for obtaining any necessary approval or authorisation and licences. We are not obligated to fulfil the terms of the contract if this would lead to violation of applicable export laws.
K. Concluding Provisions
1. Schifferstadt, Germany is the place of performance for deliveries and payments. The place of jurisdiction for any legal conflicts, regardless of whom they involve or on which grounds, is Ludwigshafen am Rhein, Germany. The same applies if the buyer’s place of residence is unknown or if its place of residence or usual domicile has been moved abroad. The place of jurisdiction for judicial collecting procedures is Mayen, Germany. The general terms of delivery and payment and the special conditions remain binding even if individual provisions are legally invalid.
2. If one of the above provisions is invalid, this does not affect the validity of the remaining provisions. Should one provision prove invalid or require interpretation, however, the parties are obligated to replace the invalid or ambiguous provision with one that approximates, as closely as possible, the parties’ commercial intent.
Version dated 22nd October 2015