General Terms and Conditions of AUTOPSTENHOJ GmbH
for deliveries to companies
GTC: These general terms and conditions of AUTOPSTENHOJ GmbH - AUTOPSTENHOJ GmbH, Sandkampstr. 90, 48432 Rheine -
Buyer: Customers of AUTOPSTENHOJ, which are companies acc. to § 14 BGB (German civil code)
BGB: Bürgerliches Gesetzbuch (German Civil Code)
DSG-VO: Datenschutzgrundverordnung (General Data Protection Regulation)
HGB: Handelsgesetzbuch (German Commercial Code)
Deliveries: Purchase of software and/or products with or without assembly
Party(ies): AUTOPSTENHOJ and/or the buyer
Products: Lifts, test equipment and other workshop equipment
Claim for damages: Claim for damages and replacement of futile expenses
Software: Machine-readable programs in object code as well as the attached documentation in German or English language, available on CD or in the internet
StGB: Strafgesetzbuch (Penal Code)
Documents: Cost estimates, drawings and other documents for the use of the products and/or software
Conditional goods: With reservation of ownership acc. to clause 6 for deliveries stated in these general terms and conditions
2.1 The legal relations between AUTOPSTENHOJ and the buyer of deliveries are based on these general terms and conditions, including the documents referred to in here, excluding all other terms and conditions which are part of any documents from the buyer, or which are referred to in those documents. In case of contradictions the conditions stated in the order confirmation or – provided there is no order confirmation - in AUTOPSTENHOJ’s offer do have priority over these general terms and conditions.
2.2 §§ 312i paragraph 1 no. 1, 2 and 3 German civil code, imposing AUTOPSTENHOJ additional obligations for drawing up contracts in electronic business relations, are excluded.
2.3 Unless otherwise agreed, neither AUTOPSTENHOJ nor the buyer shall assign any rights by copyright to use or exploit the documents they have delivered. Those documents only serve to verify the offer and must not be made available to third parties without the approval of those who are integrated in the process of verifying and delivering.
3. Delivery dates/self-supply/partial performance/early performance
3.1 Deliveries without assembly shall be made FCA (Incoterms 2020), plant of AUTOPSTENHOJ. If required by the buyer, AUTOPSTENHOJ shall organize the transport at the buyer’s risk and expenses.
3.2 Fixed delivery dates are to be agreed in writing. The agreement of a fixed performance date is subject to the performances of AUTOPSTENHOJ’s suppliers which are to be in time and as stipulated in the contract, and is subject to the buyer fulfilling his performance, such as advance payment, transfer in good time of all documents, necessary approvals and permissions, especially drawings. If the delay takes more than 1 month due to missing self-supply, both parties can withdraw from the contract. If the agreed time of delivery is exceeded, the buyer shall transfer a message in written form to AUTOPSTENHOJ, demanding the delivery with an additional delivery period of 3 weeks at minimum, provided that it is a delivery which has been manufactured especially for the buyer or if it cannot be held on stock by AUTOPSTENHOJ, and this being known to the buyer before the contract had been concluded. Only after expiration of these periods of time further rights can be claimed by the buyer.
3.3 Partial performances are permissible unless the customer’s expenditure is not disproportionate. Permissible partial performances can be charged separately by AUTOPSTENHOJ.
3.4 AUTOPSTENHOJ is entitled to deliver up to 5 working days before the date of delivery.
4. Force majeure
4.1 "Force majeure" means an event or circumstances preventing a party from fulfilling one or more of its contractual obligations stated in the contract, if and as far as the party affected from this obstacle can proof that a) they cannot reasonably be expected to control this obstacle; and that (b) it was not reasonable to foresee the obstacle at completion of the contract; and that (c) the affected party could not reasonably be expected to avoid or overcome the effects of the obstacle.
Until the opposite is not proven, it is assumed that the following events, which affect a party, would fulfil the conditions stated under clause 4.1 (a) and (b):
War (declared or not declared), hostilities, attack, actions of foreign enemies, substantial military mobilization, civil war, unrest, rebellion and revolution, military or other seizure of power, turmoil, terrorism, sabotage or piracy; currency and trade restrictions, embargo, sanctions;
legal or illegal official actions, obedience to the law or government decrees, expropriation, impoundment of plants, requisition, nationalization;
the plaque, epidemic, natural catastrophes or extreme natural phenomenon;
explosion, fire, destruction of equipment, long-lasting loss of means of transport, telecommunication, information systems or breakdown of energy supply; general work-related unrest such as boycott, strike and lockout, go-slow, squatting of factories and buildings.
4.2 A party which refers successfully to clause 4.1 shall be exempted from its duty to fulfil the contractual obligations and its duty to pay damages or from any other contractual appeal due to infringement of the contract from that point of time when the obstacle makes it impossible to fulfil the performance, provided that the obstacle or the event is immediately reported to the other party. If the report is not made immediately, the party shall be exempted from that point of time when the report is made to the other party. If the effects of the claimed obstacle or event are temporary, the above declared consequences shall only apply as long as the claimed obstacle prevents the affected party’s fulfilment of the contract. If the claimed obstacle’s duration leads to a substantial revocation of that what the contract parties were legitimately supposed to get from the contract, every party shall have the right to cancel the contract within a proper period of time if the other party has been informed before. Unless otherwise agreed, both parties agree explicitly that the contract can be cancelled by every party if the duration of the obstacle exceeds 120 days.
5. Prices, terms of payment, delay
5.1 Prices are ex works plus value added tax valid at the time of passing of risk.
If the period of time between the completion of contract and the actual date of delivery or assembly is more than 4 months without AUTOPSTENHOJ to be blamed, the prices stated in the general pricelist valid at the time of delivery or completion of the assembly minus the agreed discount shall be used.
5.2 If AUTOPSTENHOJ has taken over the assembly and there is no other agreement, the buyer shall be – aside of the agreed remuneration –
in charge of all necessary additional costs, especially travel and transportation costs.
5.3 Unless otherwise agreed, payment owed by the buyer is due immediately without deduction, provided that the following conditions have been met:
(i) Passing of risk to the buyer or inspection and approval, if inspection and approval is necessary by law or by contract, and
(ii) after receipt of an invoice.
5.4 Payment is to be made to the account of AUTOPSTENHOJ, stated in the offer or in the order confirmation. Disregarding the buyer’s determination, only AUTOPSTENHOJ shall have the right to determine which claims are set off against received money.
5.5 In case of delay in payment as well as justified doubts in the buyer’s solvency, AUTOPSTENHOJ shall have – regardless of other rights – the right to ask an advance payment for performances which have not been executed so far, to revoke any guaranteed payment periods and to immediately demand all claims arising from the business relation. If the customer is behind with a due payment, AUTOPSTENHOJ is not obliged to carry out any deliveries. The buyer in default of payment shall bear all appropriate costs AUTOPSTENHOJ has to carry for dunning, collection and enquiries.
5.6 If AUTOPSTENHOJ falls behind with performances and if the buyer can prove that he has suffered damage, the buyer is entitled to demand a 0.5 % compensation for every completed week of delay, but in total only 10 % of the remuneration for that part of the delivery which could not be used appropriately due to the delay.
Claim for damages by the buyer due to delay of delivery as well as claim for damages instead of performance exceeding the limitation stated in clause 5.5 is excluded in all cases of delayed delivery, also after expiration of a period of time which was set to AUTOPSTENHOJ to carry out their performances. This is not valid as far as reliability is taken in case of intention, gross negligence or if life, limb or health is damaged. The buyer is only entitled to withdraw from the contract within the legal regulations as far as AUTOPSTENHOJ is responsible for the delay.
5.7 The buyer is obliged to declare within 2 weeks on demand of AUTOPSTENHOJ whether he withdraws from the contract due to the delayed delivery of whether he insists on delivery and/or claims damages. In case of withdrawal, the buyer shall reimburse AUTOPSTENHOJ for the value of the products’ and/or software’s possible prior use.
The value in use is calculated based on the tax depreciation period.
The above-mentioned regulations of this clause and of clause 5.5 of these general terms and conditions cannot change the burden of proof being disadvantageous to the buyer.
5.8 If the buyer is in default of acceptance, he will be charged with a fee for warehousing of 1 % of the price of the delivery, but in total at maximum only 5 %, from the 15th day of default of acceptance for every further month that has begun. The parties are free to give proof of higher or lower warehouse costs.
6. Retention of title
6.1 Until fully paid, AUTOPSTENHOJ shall reserve ownership for reserved goods for which the purchase-money claim is immediately due or for which a deadline to meet the due date of the purchase-money claim of up to 30 days inclusive after carrying out the owned performance or after receipt of invoice has been agreed.
In all other cases AUTOPSTENHOJ shall reserve ownership of the reserved goods until all demands of AUTOPSTENHOJ relating from this business relation have been met by the buyer. As far as the value of all charging liens AUTOPSTENHOJ is entitled for exceeds the value of all secured demands by more than 20 %, AUTOPSTENHOJ will release a corresponding part of the charging liens on demand of the buyer; AUTOPSTENHOJ shall decide which kind of charging lien is to be released.
6.2 Pawning or collateral assignment of the reserved goods is prohibited. Resale of the reserved goods is only allowed in normal business and only provided that the buyer either systematically receives payment from his customer against handing over the reserved goods or that the buyer makes the reservation that the ownership of the reserved goods passes over to his customer only when he has fulfilled his obligation to pay towards the buyer.
6.3 If the buyer resales the reserved goods, he shall assign as a precaution at this point of time his future claims relating from the resale to his customer and all accessory rights – including any balance claims – to AUTOPSTENHOJ without the need for further declarations. If the reserved goods are resold together with other goods without having agreed a single price for the reserved goods, the buyer shall assign that part of the total price claim to AUTOPSTENHOJ which corresponds to the price of the reserved goods AUTOPSTENHOJ has invoiced to the buyer.
6.4 The buyer is allowed to process the reserved goods, to mix it with other goods or to combine it. Processing shall be made for AUTOPSTENHOJ. The buyer shall store the new object which emerges from that processing as carefully as a full businessman. This new object is to be considered as reserved goods with reference to this clause 6.
6.5 At this point of time, AUTOPSTENHOJ and the buyer agree that AUTOPSTENHOJ is in any case to be guaranteed co-ownership of the new object – if it has been combined or mixed with other objects which do not belong to AUTOPSTENHOJ – in the amount of share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixture. The new object is to be considered as reserved goods with reference to clause 6.
6.6 The regulation stated in clause 6.3 on the assignment of claims shall also be used for reserved goods which have been emerged from processing, combining or mixing, but under the condition that the claim is only assigned up to that amount relating to the value AUTOPSTENHOJ invoiced to the buyer for the non-processed, non-combined or non-mixed reserved goods.
6.7 If the buyer combines the reserved goods with property or movable objects, as a precaution he shall assign to AUTOPSTENHOJ – without the need to declare – also his claim he is entitled to get as remuneration for that combination, and all accessory rights at the value of the ratio of the value of the non-combined reserved goods to the other combined goods at the time of the combination.
6.8 Subject to revocation at any time, the buyer is entitled to collect the precautionary assigned claims resulting from the resale of the reserved goods. If there is an important reason, especially delay in payment, suspension of payments, opening of insolvency proceedings, bill protest or justified assumptions that the buyer is heavily indebted or nearly insolvent, AUTOPSTENHOJ is entitled to revoke the buyer’s direct debt authorization. Besides, AUTOPSTENHOJ is allowed – prior to threatening and keeping an appropriate deadline – to reveal the assignment of security, to use the assigned claims as well as to demand from the buyer to reveal the assignment of security towards his customer.
6.9 If it comes to distraint, confiscation or other instructions or interventions from third parties, the buyer must inform AUTOPSTENHOJ immediately. Upon substantiation of a legitimate interest, the buyer is obliged to immediately provide AUTOPSTENHOJ with all information necessary to claim his rights against the buyer’s customer and to hand over the necessary documents.
6.10 Upon breach of duty by the buyer, especially upon delay in payment, AUTOPSTENHOJ is entitled to take back the goods and to withdraw from the contract after expiration of an appropriate deadline for the buyer to perform. The buyer is obliged to return the goods. Taking back the goods or assertion of the retention of title or distraint of the reserved goods by AUTOPSTENHOJ does not mean withdrawal from the contract unless AUTOPSTENHOJ would have declared this expressly.
7. Installation and assembly
7.1 If the buyer ordered installation and assembly from AUTOPSTENHOJ, he shall pay for and make available in time:
- all excavation, construction and other works foreign to this trade, including the necessary experts and auxiliary workers, materials and tools;
- the implements necessary for assembly and putting into operation such as scaffolds, lifting tools and other devices, fuels and lubricants;
- energy and water at the place of use including connections, heating and lighting;
- sufficient big, appropriate, dry and lockable rooms at the place of assembly to store machine parts, equipment, materials, tools etc. as well as appropriate rooms for the assembling personnel and sanitation facilities which are appropriate depending on the circumstances; furthermore, the buyer shall take those measures at the construction site to protect the objects AUTOPSTENHOJ has brought and to protect the assembling personnel which he himself would have taken for his own protection;
- protective clothing and protective devices made necessary due to special circumstances.
7.2 Prior to the assembly works, the buyer shall inform AUTOPSTENHOJ without having been asked about the location of covered energy, gas or water pipes or similar devices as well as about the statics.
7.3 Prior to the installation or assembly, all provisions and objects necessary for the start of the works shall be at the place of installation or assembly and all preparatory works shall be as progressed as the installation and assembly can start as agreed and executed without interruptions. Approach roads and the place of installation or assembly are to be levelled and cleared.
7.4 If installation, assembly or putting into operation is delayed by circumstances AUTOPSTENHOJ is not responsible for, the buyer shall bear to a reasonable extent the costs for waiting time and additionally necessary journeys of AUTOPSTENHOJ’s assembling personnel.
7.5 The buyer shall insure the goods at his costs from the time of delivery against theft, loss or damage, unless the goods have not already been insured by a third party, e. g. the building principal or the general contractor.
7.6 If AUTOPSTENHOJ demands acceptance of the delivery after completion, the buyer shall carry out acceptance within two weeks. Acceptance is deemed as having been made if the buyer misses the two weeks deadline or if the delivery has been taken into operation, possibly after an agreed test period.
8.1 The buyer is granted exclusively for his own business purposes the simple, non-exclusive, non-transferable right to use – spatially and timely unlimited – the software provided as a part of the delivery for the products. The buyer is allowed to make a copy for the purpose of backing up the software. He shall copy alphanumerical signs, trademarks and copyright notes without changing them and shall record their remaining. Documentation must not be duplicated.
8.2 The buyer is allowed to use the software with any hardware available to him. However, if the buyer changes the hardware, he is obliged to delete the software off the prior used hardware. The user is allowed to duplicate the software as far as the duplication is necessary for the use of the software. The necessary duplications also comprise the installation of the software from the original data medium to the mass storage of the used hardware as well as loading on the main memory. The buyer shall ensure that the software, its duplications and the documentation is not rent to third parties without the written approval of AUTOPSTENHOJ.
8.3 Unless not otherwise agreed in writing, the software’s nature, especially the performance volume, the approved operational environment and the possibilities of use for the buyer result in the following order from the offer and the corresponding documentation of use.
8.4 The languages in which the software and its documentation of use are available can be found in the Extranet.
8.5 AUTOPSTENHOJ is not obliged to deliver the software’s source code.
8.6 Installing a functional environment for hardware and software which has sufficient dimension for the additional strain through the software is not in AUTOPSTENHOJ’s scope of delivery, but solely in those of the buyer.
8.7 If software manufactured by third parties is used, the license conditions of the software manufacturer are valid and are to be handed over to the buyer on demand. In case of contradictions between the manufacturer’s license conditions and the conditions of this clause 8.1 – 8.6, the first are to be prioritized.
9. Material deficiencies
9.1 The buyer is not entitled to warranty claims due to only minor deviation of the agreed nature, due to only minor affection of the usefulness, due to natural wear and tear or damage which result after passing of risk due to faulty or negligent treatment, over-stressing, inappropriate operational means, faulty construction works, inappropriate construction ground or which result from special external influences the contract does not foresee, as well as due to reproducible software errors. If the buyer or third parties have carried out inappropriate modification, assembly/dismantling or repair works, damages cannot be claimed for these consequences or for those resulting from it.
9.2 The buyer is entitled to warranty claims if the delivered goods do not meet the subjective, objective and/or assembly requirements of § 434 German Civil Code at passing of risk. Unless the last contract in the supply chain is no non-durable goods purchase, the issue if the deliveries meet the objective requirements depends exclusively on an agreement on quality if such an agreement has been closed.
9.3 Subsequent performance shall be carried out at choice of AUTOPSTENHOJ by improvement or new delivery.
9.4 Claims on subsequent performance become statute-barred after 12 months from the legal beginning of the limitation of claims; the same applies for withdrawal and reduction. This deadline does not apply as far as the law stipulates longer deadlines according to §§ 438 paragraph 1 no. 2 (buildings and material for buildings) and 634a paragraph 1 no. 1 and no. 2 (construction deficiencies) of the German Civil Code, in case of intent, fraudulent concealment of the deficiency as well as non-compliance of a quality warranty. Unless the last contract within the delivery chain is no non-durable goods purchase, claims for reimbursement of expenses of the buyer according to § 445a German Civil Code (recourse of the seller) are statute-barred after 12 months from the legal beginning of the limitation of claims.
9.5 The legal regulations on suspension of the running of a period, suspension and new beginning of the deadlines shall remain unaffected. The suspension of the running of a period shall end in any case at the latest 5 years after the point of time when AUTOPSTENHOJ supplied the buyer. This is not valid for exceptional cases stated in clause 9.4 of these general terms and conditions.
9.6 The buyer is obliged to examine the delivered goods for obvious defects which should be visible without problems to an average industrial buyer. Obvious defects are missing manuals as well as substantial, easily visible damage to the goods. Furthermore, it is a defect if the wrong goods or too little quantity has been delivered. Such obvious defects shall be complained with AUTOPSTENHOJ in written form within (1) week after passing of risk
Defects which become obvious at a later stage shall be complained with AUTOPSTENHOJ within (2) weeks after detection by the buyer.
Upon breach of the obligation to examine and complain, the delivery is regarded as accepted in view of the deficiency.
9.7 Claims of the buyer for expenses used for improvement are excluded since the expenses increase because the subject of delivery has been taken afterwards to another location than the agreed place of delivery, unless the transportation is appropriate for its intended use. Unless the last contract within the delivery chain is no non-durable goods purchase, the afore-mentioned shall apply to claims for reimbursement of expenses of the buyer according to § 445a German Civil Code (recourse of the buyer).
9.8 Claims for recourse of the buyer against AUTOPSTENHOJ according to § 445a German Civil Code (recourse of the buyer) are only valid as far as the buyer has not met any agreement with his customer which exceeds the legal claims for deficiencies.
9.9 Claims for damages of the buyer due to material deficiency are excluded. This does not apply for fraudulent concealment of the deficiency, non-compliance of a quality warranty, damage of life, limb or health and upon AUTOPSTENHOJ’s intended or grossly negligent breach of duty. A modification to the burden of proof being disadvantageous to the buyer shall not be related to the afore-mentioned regulations.
9.10 Further claims of the buyer or claims other than those agreed in this clause 9 due to a material deficiency are excluded.
10. Deficiency in title
10.1 AUTOPSTENHOJ guarantees within the deadlines stated in clause 9.4 that no rights of third parties, especially copyrights, are violated by using the delivered goods in the member states of the EU.
10.2 If industrial patent rights of third parties in a member state of the EU are violated through the deliveries and the buyer is consequently prohibited by third parties from using the deliveries totally or partly, AUTOPSTENHOJ shall either give the buyer the right to use the deliveries or to make them free of protective rights. Further rights of the buyer only exist if AUTOPSTENHOJ is not able to carry out one of these measures appropriately or if they fail.
10.3 If a third party makes demands on the buyer due to violated protective rights and AUTOPSTENHOJ is obliged to warranty, AUTOPSTENHOJ shall release the buyer from these demands if the buyer requires this in written form.
10.4 If the buyer ceases to use the deliveries to reduce damage or due to other important reasons, he is obliged to point out to the third party that ceasing the use does not acknowledge a violation of protective rights.
10.5 The buyer cannot claim the violation of industrial protective rights if he acknowledges the demands of third parties without acceptance by AUTOPSTENHOJ or if the violation of protective rights is caused by particular guidelines of the buyer, by use AUTOPSTENHOJ could not foresee or by the fact that the buyer has modified the delivery or used it with products which AUTOPSTENHOJ did not deliver.
10.6 In case of violation of protective rights the regulations of clause 9.7 and 9.8 as well as clause 11 phrase 2 are valid for the buyer’s claims fixed in paragraph 10.2.
10.7 If there are other deficiencies in title, the regulations of clause 9 are accordingly valid.
10.8 Further claims of the buyer against AUTOSTENHOJ or its accomplice or claims other than those agreed in this clause 10 due to deficiencies in title are excluded.
11. Set-off, retention
The buyer is entitled to set-off or to claim the right of retention only if a claim is indisputable or has legally been identified. In case of an indisputable or legally identified notice of a defect, the right of retention is only permissible in an appropriate and reasonable relation between the defect and reimbursement.
12. Impossibility; contract adjustment
12.1 If delivery is impossible, the buyer is entitled to claim damages, unless AUTOPSTENHOJ is not responsible for that impossibility. However, the claim for damages of the buyer is limited to 10 % of the value of that part of the delivery which cannot be used appropriately due to the impossibility. This limitation is not valid as far as liability is taken in cases of intention, gross negligence or life, limb or health is damaged; a modification to the burden of proof being disadvantageous to the buyer is not related. The buyer’s right to withdraw from the contract remains unaffected.
12.2 A contract party is obliged to fulfil its contractual obligations, even if the events have made the fulfilment more difficult as it could legitimately be expected at the time of completion of contract.
If a party can proof regardless of paragraph 1 of this clause that not only the further fulfillment of their contractual obligations was not possible due to an event which was out of their reasonable control and could not be foreseen at the time of completion of the contract, as well as that the party could not have avoided or overcome the event and its consequences in a reasonable manner, the parties are obliged to agree alternative contractual conditions within an appropriate deadline after claiming this clause for the purpose of making it possible in an appropriate way to overcome the consequences.
If the afore-mentioned paragraph of this clause is used, yet the parties were not able to agree alternative contract conditions according to that paragraph, every party is entitled to cancel the contract.
13. Other damage claims
13.1 AUTOPSTENHOJ promises that their employees and their subcontractors are reimbursed according to the legal regulations. AUTOPSTENHOJ vouches especially for the fact that their employees and their subcontractors get the minimum wage stated in the minimum wage law.
13.2 AUTOPSTENHOJ cannot be held liable for damage caused by ordinary negligence, unless it is damage caused by violation of the body, health or life or infringement of substantial contractual obligations.
13.3 If substantial contractual obligations are infringed, AUTOPSTENHOJ shall be held liable in case of ordinary negligence for the damage which was foreseeable at completion of the contract, yet at maximum only up to 250,000.00 €.
13.4 Liability according to the product liability act remains unaffected.
13.5 AUTOPSTENHOJ shall be held liable in all other cases, unless there is no maximum liability sum determined by law.
14. Data protection
AUTOPSTENHOJ processes the buyer’s personal data exclusively upon compliance with the guidelines for data protection, especially those of the General Data Protection Regulation and of the Federal Data Protection Act. AUTOPSTENHOJ guarantees data protection by suitable technical and organizational measures appropriate to imminent risk, especially to protect personal data from unintended or illegal acknowledgement by third parties.
15. Place of jurisdiction and applicable law
The legal relationship between the buyer and AUTOPSTENHOJ is based on the substantive German law, excluding the agreement of the United Nations on contracts for the international purchase of goods (CISG).
Exclusive place of jurisdiction for all disputes of the parties due to the business relation is Rheine unless the law does not determine another place of jurisdiction.
16. Liability of contract
The contract on deliveries remains partly liable even if parts of the regulation in these general terms and conditions become legally ineffective. This is not applicable if keeping to this contract meant an unreasonable hardship for one party.