General Terms and Conditions of Sale
of AUTEC GmbH
Rheinauenstrasse 1, D -79415 Bad Bellingen
for use in business transactions with companies
As of April 2018
1.1 Unless otherwise agreed in writing, the following General Terms and Conditions of Sale (hereinafter "Conditions") shall apply exclusively to all - current and future - deliveries of goods and services (hereinafter "Deliveries") made to the Customers specified in Clause 1.2. The terms and conditions of our Customers shall not form part of any transaction even if we do not expressly exclude them.
1.2 These Conditions only apply to companies within the meaning of Section 14 German Civil Code (BGB), legal persons under public law and special funds under public law (hereinafter referred to as "Customers").
2. Conclusion and Content of the Contract
2.1 Our offers are non-binding. Unless otherwise stipulated in the order, the Customer is bound by its order for a period of 14 days as from the date of receipt. Contracts only come into effect by way of our written order confirmation or delivery.
2.2 Oral ancillary agreements or commitments by our employees which go beyond the content of the written contract or which modify these Conditions in such a way that is disadvantageous to us, are only valid with our written confirmation.
2.3 Our illustrations, drawings, colour specifications, weight specifications and measurements only represent approximate values insofar as they are not a) expressly identified as binding or b) material.
2.4 Our product specifications do not constitute any guarantee.
2.5 Where we manufacture according to drawings, the Customer must send us the relevant original drawing with the purchase order. Costs arising where we manufacture on the basis of errors contained in the drawings shall be borne by the Customer.
3.1 Our prices shall be EXW Rheinaustr. 1, D-79415 Bad Bellingen Incoterms®2010, net in euro and exclusive of the cost of packaging and value added tax at the applicable rate.
3.2 In the case of orders with delivery periods longer than 2 months, we are entitled to increase the agreed prices accordingly where, following conclusion of the contract, there are major changes in our purchase prices or in the price of materials and raw materials or wage and salary costs, and we are not responsible for these changes. Where a price increase exceeds 5%, the Customer is entitled to rescind the contract in writing within 2 weeks of notification of the price increase.
4.1 Payments shall be transferred to our bank account within 14 days with 2% discount or within 30 days of the invoice date without any deductions and free of charges. Compliance with the payment deadline is determined by the date on which payment is received.
4.2 In the event of default on payment, we will charge default interest amounting to 9 percentage points above the base rate, but in any case no less than 10 %.
4.3 The retention of payments or set-off against counter claims is only permitted where the counter claims are undisputed or upheld by a final court judgement. In addition, the Customer is only authorised to exercise a right of retention insofar as its counter claim arises from the same contract.
5. Delivery, Transfer of Risk, Delivery by Own Suppliers, Partial Delivery
5.1 Delivery takes place EXW Rheinaustr. 1, D-79415 Bad Bellingen Incoterms®2010.
5.2 Risk shall pass to the Customer EXW Rheinaustr. 1, D-79415 Bad Bellingen Incoterms®2010 and this shall apply even where, in the exceptional case, we have assumed other responsibilities, e.g. shipping costs.
5.3 Our delivery obligation is subject to the proviso that we receive correct and timely delivery from our own suppliers, unless we are to blame for their late or delayed delivery. In such cases, we may rescind the contract.
5.4 Partial deliveries are permitted to a reasonable extent; they may be invoiced separately.
6. Delivery Time
6.1 Delivery periods are approximations only.
6.2 The delivery period commences on receipt of the order confirmation but not before clarification of all details relating to the execution of the order and technical issues, the submission of any documents, permits and clearances necessary for delivery, which must be obtained by the Customer, and not before the receipt of any agreed down payment or payment security. The delivery period is deemed to have been complied with where the goods are made available by expiry of the period.
6.3 In the case of call-off orders, we must receive the call-off at least two weeks before the desired delivery date.
6.4 Requests for changes made by the Customer shall extend the delivery time until we have examined their feasibility and for the period required for implementing the new requirements into the production.
6.5 In case of a delay in delivery, our liability for simple negligence shall be limited to 0.5% per full week, but not exceeding a total of 5% of the net invoice value for the part of the delivery affected by the delay. This shall be without prejudice to the right to damages in lieu of performance pursuant to Clause 11. The Customer shall notify us, by no later than conclusion of the contract, of any contractual penalties applicable to its customers.
6.6 Where dispatch is delayed as a result of circumstances for which we are not responsible, we shall charge for storage at our storage facility at a monthly rate of at least 0.5% of the invoice amount for the stored delivery. At the Customer’s request, we will insure the goods at the Customer’s expense against the usual risks.
7. Force Majeure
7.1 Unforeseen or unavoidable events, or events for which we cannot be held responsible (e.g. strikes or lockouts, operational breakdown due to force majeure, problems in the procurement of material or energy, transport delays, shortages in staff, energy or raw materials, official measures as well as difficulties in obtaining authorisations esp. import and export licences), shall extend the delivery period by the duration of the period of disruption and its effects. This also applies where our own suppliers are subject to obstructions or during an existing period of delay.
7.2 Where the obstruction is not purely temporary, both parties to the contract are entitled to rescind. The right to claim damages is excluded in the cases referred to in Clause 7.1.
Our packaging arising in Germany, but not that attributed to the private end-user, can be returned to us at our place of business during the normal hours of business. The Customer shall bear the cost of return. Packaging must be returned clean, free of extraneous material and sorted according to type.
9. Reservation of Title
9.1 We reserve title to the goods delivered until all payments have been received and cheques and bills of exchange, arising from the business relationship with the Customer, irrevocably honoured. Where there is a current account relationship, the reservation of title extends to the recognised balance.
9.2 The Customer is obliged to handle the reserved goods with care and keep them in good condition; in particular it is obliged to insure them sufficiently against loss or damage, at its own expense, for the replacement value. The insurance policy and evidence of payment of the premiums must be submitted to us on request. The Customer hereby assigns to us any claims arising under the insurance contract subject to the condition subsequent that title passes. We hereby accept the assignment.
9.3 Any treatment or processing of the reserved goods by the Customer shall be undertaken on our behalf without involving any obligations on our part. Where the reserved goods are mixed or combined with other goods, we shall acquire co-ownership of the new product in accordance with the ratio of the net invoice value of the reserved goods to the other materials.
9.4 The Customer is entitled to sell the reserved goods in the ordinary course of business; however, the Customer hereby assigns to us, in advance and in full, all receivables to which it becomes entitled as a result of the resale or subsequent use.
9.5 The Customer is entitled to collect the receivables assigned to us provided it complies with its payment obligations from the revenue collected.
9.6 Where the Customer ceases to meet its payment obligations, we can revoke the authorisation for the subsequent sale and use of the reserved goods and require the Customer to disclose to us the assigned receivables and the respective debtors, provide us with all the information necessary to effect recovery, hand over to us all the accompanying documentation and notify its debtors of the assignment. Redemption of the reserved goods does not constitute rescission of the contract. If we declare rescission of the contract we shall be entitled to sell the goods as we think fit.
9.7 Attachment of the reserved goods by third parties must be reported to us without delay. The costs arising as a result of defending an attachment shall be borne by the Customer insofar as they cannot be recovered from the third party.
9.8 Where the value of securities exceeds our claims by more than 10%, we shall, at the Customer's request, release securities in this regard at our own discretion.
10. Liability under Warranty
10.1 The Customer can only assert rights to claim under warranty if it has properly complied with its inspection and notification obligations under Section 377 Commercial Code (HGB) in relation to the delivered goods.
10.2 The infringement of third-party rights only represents a defect where these rights exist in the Federal Republic of Germany.
10.3 Where the goods are manufactured and delivered based on drawings or other instructions from the Customer and this results in the infringement of third-party intellectual property rights, the Customer is obliged to indemnify us in this regard against all third-party claims (incl. the costs of any legal defence).
10.4 In the event of legitimate complaint, we will choose either to supply replacement goods or repair the defect. Where subsequent performance fails, the Customer may request a price reduction or - in the case of serious defects - rescind the contract. Where subsequent performance fails, the Customer is also entitled to request damages in lieu of performance pursuant to Clause 11.
10.5 We will not assume the cost of supplementary performance which arises due to the fact that, following delivery, the item delivered is transported to a location other than the Customer's place of business.
10.6 We will refund the costs of dismantling and assembly arising as a result of the replacement of defective goods provided we are responsible for the defect.
10.7 Insofar as the defect arises from a material third-party product, we are initially entitled to restrict our liability to the assignment of the claims and rights under warranty to which we are entitled as against the supplier of this third-party product, unless satisfaction by way of the assigned claims or rights fails or cannot be obtained for some other reason. In this case, the Customer is entitled to the rights under Clause 10.4.
11. General Liability
11.1 We shall be liable for intent or gross negligence, fraudulent concealment of defects, death, personal injury or damage to health or under the Product Liability Act, in accordance with the law. Where there is a guarantee, we shall be liable in accordance with any provisions of the guarantee.
11.2 In the case of simple negligence, we are only liable for the breach of a material contractual condition, which is one which must be fulfilled in order for the contract to be properly implemented and compliance with which the Customer generally expects and is entitled to expect; this liability is limited - in the absence of any provision to the contrary relating to damages for delay under Clause 6.5 - to compensation for foreseeable and customary loss. In all other cases, our liability is excluded.
11.3 The Customer’s rights to claim under warranty shall lapse after 12 months from the transfer of risk, other claims after 12 months from the start of the statutory period of limitation. In derogation from sentence 1 of this Clause 11.3, in the event of our liability under a guarantee, the guarantee provisions shall apply and, in the case of the fraudulent concealment of a defect and claims for damages under the Product Liability Act, as well as death, personal injury or damage to health and the intentional or grossly negligent breach of obligations, the statutory limitation provisions shall apply.
12. Place of Performance, Jurisdiction, Applicable Law
12.1 The place of performance for all services under the delivery contracts is our registered office.
12.2 The place of jurisdiction for all disputes arising under the delivery contract shall be the location of our registered office. We are however also entitled to bring proceedings in the location of the Customer's registered office.
12.3 German law applies. The UN Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.