General Terms of Delivery and Payment
(Version: October 2012)
1. Scope of application
For all supplies and services (hereafter referred to simply as “Deliveries”), including those in the future, made by companies within the Auto-Kabel Group (hereinafter referred to as “Auto-Kabel”) to customers as defined in sub-section 1.2, the following General Terms of Delivery and Payment (hereafter referred to simply as “Terms”) shall apply exclusively, unless otherwise agreed in writing. The Customers’ terms of business shall not become part of the contract, even if Auto-Kabel does not expressly object to such terms.
These Terms only apply to owners of business entities within the meaning of Section 14 of the German Civil Code (BGB), legal persons under public law, or public-law special funds (hereinafter referred to as “Customers”).
2. Conclusion of contract and contractual contents
Offers from Auto-Kabel are non-binding.
The Customer is bound by its order for a period of 14 days. A contract is first concluded upon a written acknowledgement of order by Auto-Kabel or upon Delivery. The acknowledgement of order will be sent by the Auto-Kabel company making the Delivery.
The contract is concluded between the Auto-Kabel company making the Delivery and the Customer.
The Customer is bound by its call-off orders unless Auto-Kabel has objected to such a calloff order.
Every delivery forecast from the Customer is binding on it for a period of at least 16 weeks prior to the delivery date unless Auto-Kabel has objected to such a delivery forecast.
Oral ancillary agreements or promises by Auto-Kabel employees to anything which goes beyond the contents of the written contract, or which changes these Terms to Auto-Kabel’s detriment, are only valid if confirmed by Auto-Kabel in writing.
Drawings as well as weight or measurement data supplied by Auto-Kabel represent only approximate values unless they are expressly designated as binding.
Auto-Kabel’s prices are EXW delivery plant (Incoterms 2010) net in EUR and are subject to packaging costs and applicable value-added tax.
Prices specified by Auto-Kabel comprise the base price and the metal surcharge. The current metal price quotation agreed on with the Customer shall be applicable; the quotation listed on the date of the Delivery is decisive.
In the case of a delivery period over 2 months in the future, Auto-Kabel is, due to fluctuating purchase prices, entitled to adjust the agreed prices accordingly, should substantial changes have occurred after conclusion of the contract with regard to the prices of energy, materials or raw materials or personnel costs, where Auto-Kabel is not responsible for such changes. Price increases are limited to a maximum of 10%.
Agreed prices are based on the expected (serial) demand specified by the Customer. Auto-Kabel is entitled to adjust prices accordingly in the event the quantities requested by the Customer are more than 20% less than the expected demand for longer than 6 months. The foregoing applies accordingly to supplies of replacement parts following the end of series production.
Payment must be made without any form of deduction to Auto-Kabel’s bank account within 30 days of the invoice date. The time of deposit to Auto-Kabel’s bank account is decisive for the timeliness of payment and performance of the obligation to pay.
If the payment period is not met, Auto-Kabel is entitled to charge interest at the rate of 8 percentage points above the base interest rate, with a minimum of 10%.
The Customer may only offset or assert retention rights if its counter-claims are undisputed or legally established in court.
If well-founded doubts arise as to the Customer’s ability to pay, for instance through delays in payment, default of payment, or cheque protest, Auto-Kabel will be entitled to demand security deposits or payment in cash upon Delivery. If the Customer does not meet this request within a reasonable period of time, Auto-Kabel will be entitled to withdraw from the part of the delivery contract which has not yet been fulfilled. Auto-Kabel is not required to provide a time limit when it is apparent that the Customer is not able to provide a security, for example if an application has been filed to open insolvency proceedings involving the Customer’s assets.
5. Delivery, passing of risk, and partial deliveries
Supplies are made pursuant to EXW delivery plant (Incoterms 2010).
Risks pass to the Customer pursuant to EXW delivery plant (Incoterms 2010) even in the event Auto-Kabel has by way of exception undertaken other services, such as the shipment costs or transportation (even through its own transport personnel).
Auto-Kabel’s duty to deliver is subject to punctual and correct delivery to Auto-Kabel by its own suppliers (in particular with regard to primary materials), unless Auto-Kabel is responsible for the incorrect or delayed delivery to Auto-Kabel.
Partial deliveries are permitted to a reasonable extent.
6. Delivery date
Delivery dates are only approximate.
The delivery period starts from the moment the confirmation of order has been received, however not before all the details regarding the order fulfilment and any technical issues have been clarified, and not before receipt of an agreed advance payment or payment deposit.
The delivery period shall will be deemed to have been met if the goods are made available for shipment prior to expiry of the period.
Change requests by the Customer extend the delivery period until Auto-Kabel has reviewed the feasibility of the change request and by the amount of time needed to implement the new requirements in the production process. Auto-Kabel may give priority to and conclude other orders in the event ongoing production is interrupted as a result of a change request. Auto-Kabel is not obligated to reserve production capacities during such a delay.
In the event of delayed delivery and in case of simple negligence, Auto-Kabel’s liability is limited to 0.5% of the net invoice amount of the part of the delivery that is delayed for each week of delay, with a maximum of 5%. This does not affect the Customer’s claim to compensation in lieu of performance pursuant to sub-section 12.1. The Customer will inform Auto-Kabel, at the latest when concluding the contract, about any contractual penalties which apply to its buyers.
In the event delivery is delayed for reasons for which Auto-Kabel is not responsible, Auto-Kabel will assess a contractual penalty for the damages incurred (in particular the storing of the goods in Auto-Kabel’s plant) of at least 0.5 % of the net invoice amount of the stored goods per month.
7. Force Majeure
Unforeseeable, unavoidable events for which Auto-Kabel is not responsible (e.g. force majeure, strikes or lockouts, interruptions to business, difficulties in the procurement of materials or energy, delays in transport, shortage of manpower, energy, or raw materials, actions undertaken by government authorities or difficulties in the procurement of permits, in particular import or export licences) will extend the delivery period by the duration of the interruption and any consequences. This also applies if such impediments affect Auto-Kabel’s own suppliers or occur during an existing delay.
If the impediment is not merely of a temporary nature, both parties to the contract will be entitled to withdraw from the contract. Claims for compensation are excluded in the cases named in sub-section 7.1.
If Auto-Kabel manufactures tools for purposes of executing supply orders, Auto-Kabel retains ownership of such tools. As know-how contained in a tool cannot be completely compensated for by the Customer, the foregoing applies regardless of whether the Customer pays a price for the tool or the production of the tool is partially paid for via a unit price.
The return and disposal of packaging provided by Auto-Kabel to private consumers in Germany within the meaning of the VerpackV [German Packaging Ordinance] are ensured via Auto-Kabel’s participation in a disposal system within the meaning of Section 6 VerpackV [German Packaging Ordinance].
Auto-Kabel accepts return of Auto-Kabel packaging which accrues in Germany, but which does not reach private consumers in Germany at the respective delivery plant during normal business hours; costs for return and proper disposal are borne by the Customer. Packaging must be returned clean, free of foreign substances, and sorted by type.
10. Retention of title
Auto-Kabel retains title to the goods delivered until all payments have been received and any cheques and bills of exchange arising from the business relationship with the Customer have been credited permanently. If there is an open account relationship with the Customer, retention of title refers to the acknowledged balance.
The Customer is obliged to treat any goods under retention of title with care and to ensure its maintenance; the Customer is in particular obliged to adequately insure these goods at their replacement value against possible damage or loss. Upon request, Auto-Kabel must be provided the insurance policy and proof of payment of the premium. The Customer hereby agrees to assign to Auto-Kabel any insurance claims subject to the condition subsequent of a transfer of ownership.
The processing and converting of goods under retention of title by the Customer will always be carried out on Auto-Kabel’s behalf, without placing Auto-Kabel under any obligation. If the goods are mixed or combined with other goods, Auto-Kabel acquires co-ownership of the new goods at the rate of the net invoice value of the goods under retention of title to that of the other materials.
The Customer is entitled to resell the goods under retention of title in the ordinary course of business; however, he hereby assigns to Auto-Kabel in advance all and any receivables in their full amount which are due to the Customer from the resale or subsequent use.
The Customer is entitled to collect the receivables assigned to Auto-Kabel as long as the Customer meets its payment obligations arising from the proceeds collected.
If the Customer no longer meets its payment obligations, Auto-Kabel may revoke the authorization for resale and subsequent use and request that the Customer disclose to Auto-Kabel the assigned receivables and the respective debtors, let Auto-Kabel know all the details necessary for collection, hand over to Auto-Kabel the related documents, and inform the debtors of the assignment. Taking back goods under retention of title does not imply withdrawal from the contract. If Auto-Kabel declares withdrawal, Auto-Kabel will be entitled to discretionary utilization of the goods.
Auto-Kabel must be notified immediately of any third-party access to goods under retention of title. Any costs which arise from preventing such access will be borne by the Customer, unless they can be recovered from the third party.
If the value of the collateral exceeds Auto-Kabel’s claims by more than 10 %, Auto-Kabel will release collateral at its discretion upon the Customer’s request.
The Customer is required to provide equivalent security in the event the retention of title is not effective in the country in which the delivered goods are located. If the Customer does not satisfy this obligation, Auto-Kabel may, without regard to agreed payment terms, demand the immediate payment of all open invoices.
11. Liability for defects
In case of defects, Auto-Kabel must be informed in writing without delay, at the latest however 8 days after receipt of the goods, and in case of hidden defects at the latest 5 days after discovery. If these deadlines are not met, all claims and rights arising from the liability for these defects will lapse.
A violation of third-party rights only represent a defect in the event such protected rights exist within the Federal Republic of Germany.
In the case of justified complaints, Auto-Kabel will either supply a replacement or repair the goods, at Auto-Kabel’s discretion. Should the replacement delivery fail within an appropriate grace period or is denied or delayed, the Customer may, after a reasonable grace period without result, request a reduction in the price or – provided the defect is substantial – withdraw from the contract and demand compensation pursuant to sub-section 12.1.
Any costs for remedial work which arises due to the fact that the purchased item was transported to a place other than the Customer’s business establishment after delivery, will not be accepted unless such relocation complies with the intended use.
Insofar as the defect is due to an essential product of a third-party, Auto-Kabel is entitled to initially limit its liability to the assignment of claims for and rights to liability for defect to which Auto-Kabel is entitled against the supplier of the third-party product, unless the satisfaction from the assigned claim or right fails or cannot be achieved for other reasons. In such cases, the Customer will again have the rights named in sub-section 11.3.
The period of limitation will lapse 12 months following the transfer of risk, unless Auto-Kabel is liable for physical injuries, violates its obligations intentionally or due to gross negligence, concealed the defect fraudulently, or accepted a further-reaching guarantee, or the law provides for a longer statute of limitations.
In the event a Delivery is to be based on a sample created by Auto-Kabel, the Customer is required to release such sample. If the Customer does not provide release within the period of time specified by Auto-Kabel on grounds for which the Customer is responsible, the sample is deemed to be released following expiry of such period.
12. General liability
Claims for compensation for damages – regardless of form – against Auto-Kabel are excluded in the event Auto-Kabel, its statutory representatives, or its agents have caused such damages due to simple negligence. This exclusion of liability does not apply to physical injuries, to cases where a contractual guarantee has been granted, or to cases where material contractual obligations have been breached. Material contractual obligations are those obligations the fulfilment of which allows the contract to be executed properly in the first place and compliance with which the Customer regularly relies on, and is entitled to rely on, and the breach of which endangers achievement of the purpose of the contract.
Upon assumption of a guarantee, Auto-Kabel’s liability is limited to the scope of the guarantee and, in the event of a breach of material contractual obligations as a result of simple negligence, to damages which are foreseeable and typical to the contract.
Liability under the German Product Liability Act shall remain unaffected.
Claims for compensation for damages lapse one year after the Customer becomes aware or should have become aware absent gross negligence, of the damages and the associated obligation to pay compensation for these damages. The foregoing is without prejudice to claims under the German Product Liability Act, claims for physical injury or for defects.
13. Place of performance, place of jurisdiction, choice of law
The respective plant from which goods are shipped is deemed to be the place of performance for any Deliveries and payments.
Auto-Kabel’s registered office is the place of jurisdiction for all disputes arising from the delivery contract. However, Auto-Kabel is also entitled to file suit at the location of the Customer’s registered office.
German law shall apply. The Convention on the International Sale of Goods (CISG) of the United Nations dated 11.04.1980 is excluded.