General Terms and Conditions of Purchase
1. SCOPE OF APPLICATION
a) These General Terms and Conditions of Purchase shall apply to the delivery of goods to AUDIO MOBIL in legal transactions with companies (hereinafter referred to as "contractual partners"), unless the contractual parties have expressly agreed otherwise in writing.
b) The contractual partner agrees that in the event of the use of general terms and conditions by him - even if they remain uncontradicted - these terms and conditions are to be assumed. In this respect, contractual performance by AUDIO MOBIL shall not be deemed to constitute consent to contractual terms and conditions that deviate from its own.
c) In the case of ongoing business relationships, these Terms and Conditions shall also apply to future transactions in which no express reference is made to them if they were agreed by the contracting parties in a previous order.
d) The following provisions on the delivery of goods shall also apply mutatis mutandis to the provision of services.
e) The legal relationship between AUDIO MOBIL and the contractual partner is governed by these provisions and any other agreements and contracts. Amendments, collateral agreements, reservations and supplements must be made in writing to be legally effective. This also applies to any agreement to deviate from the written form requirement. Other general terms and conditions shall not apply even if they are not expressly contradicted in individual cases.
2. OFFER AND CONCLUSION OF CONTRACT
a) Offers made by the contractual partner are free of charge and binding. The contractual partner is bound to this offer for 6 months from receipt by AUDIO MOBIL.
b) The contractual partner shall adhere exactly to our request in the offer with regard to the quantity and quality of the goods or with regard to details of the execution.
c) AUDIO MOBIL accepts offers from the contractual partner by written order. The written form requirement is also fulfilled by electronic data transmission by e-mail or fax. Special agreements, including those with representatives of AUDIO MOBIL, must be confirmed in writing by AUDIO MOBIL in order to be valid.
d) If the contractual partner deviates in any way from the content of AUDIO MOBIL's order in its order confirmation, this fact must be expressly pointed out in writing and AUDIO MOBIL's written consent must be obtained. AUDIO MOBIL expressly reserves the right to cancel the order if the order is not accepted by mutual agreement within 14 days.
e) All offer, project and drawing documents, samples etc. are strictly confidential and may not be reproduced or made accessible to third parties without the consent of AUDIO MOBIL. They may be reclaimed at any time and must be returned to AUDIO MOBIL immediately if the order is placed elsewhere.
f) On all documents sent to AUDIO MOBIL, in particular order confirmations, shipping notifications, delivery bills and invoices, the contractual partner shall state the order number, the order date, the article number and all data from AUDIO MOBIL used to identify the order in more detail. In the case of call-offs, the contractual partner shall also note the respective dates of the call-offs concerned.
g) Subsequent amendments and additions to the contract must be confirmed in writing by AUDIO MOBIL in order to be valid.
3. PRICES
a) The prices stated in the order or agreed with the contractual partner are fixed prices. A change to the agreed delivery time is excluded - even in the case of delivery call-offs. Price escalation clauses are not recognized by AUDIO MOBIL.
b) Changes in tax law or other circumstances - e.g. due to collective agreements, material price increases, etc. - up to the time of delivery do not entitle the customer to a subsequent price increase.
c) Unless otherwise agreed in writing, the prices are free AUDIO MOBIL, including packaging, transport insurance and other costs, excluding VAT. If fees, taxes or other charges are levied in connection with the delivery, these shall be borne by the contractual partner.
4. DELIVERY
a) The delivery and call-off dates stated in the order or agreed with the contractual partner are binding and commence - unless a specific delivery date is stated - on the date of issue of the order.
b) In the absence of a written agreement to the contrary, AUDIO MOBIL must make the delivery free of packaging, freight, customs duties and charges to the place of receipt specified by AUDIO MOBIL. AUDIO MOBIL may refuse to accept freight collect shipments.
c) Receipt of the goods at AUDIO MOBIL's location or at the agreed place of delivery is decisive for compliance with the delivery time. The contractual partner is obliged to inform AUDIO MOBIL immediately in writing if circumstances arise or become known to him which indicate that the agreed delivery time cannot be met.
d) AUDIO MOBIL is entitled to demand partial or advance deliveries. Excess or short deliveries shall only be accepted subject to a maximum of 3% of the ordered quantity.
e) In the event of a delay in delivery by the contractual partner, AUDIO MOBIL shall be entitled to demand a no-fault contractual penalty in addition to fulfillment without proof of damage. This shall amount to 1% of the order value for each commenced week of delay, but shall not exceed a total of 10% of the order value. AUDIO MOBIL reserves the right to claim further damages if the contractual partner is at fault. In all other respects, the statutory conditions shall apply.
f) The goods must be securely packed at the expense of the contractual partner to protect against loss, damage or damage to persons, equipment or other goods and loaded securely for transportation. The contractor shall be liable for all consequences of inadequate packaging. Items damaged in transit shall be returned to the contractual partner freight collect. The contractual partner shall be responsible for settling the claim with the forwarding agent or carrier. Packaging shall only be returned by express agreement and at the expense of the contractual partner.
g) The occurrence of unforeseeable or unavoidable circumstances or circumstances for which AUDI MOBIL is not responsible, such as operational disruptions, sovereign measures and interventions, strikes, obstruction of traffic routes, delays in customs clearance or force majeure, shall release AUDIO MOBIL from its obligation to take delivery for the duration and extent of their effect. In these cases, claims of the contractual partner for consideration and compensation are excluded.
5. ASSUMPTION OF RISK AND PLACE OF PERFORMANCE
a) The risk shall not pass until the goods arrive at the place of receipt specified by AUDIO MOBIL. In the case of deliveries involving installation or assembly, the risk shall pass to AUDIO MOBIL upon acceptance of the installed or assembled goods. This also applies in the case of partial deliveries or if the transport is carried out or organized by AUDIO MOBIL.
b) At AUDIO MOBIL's discretion, the place of performance for delivery and fulfillment shall be the registered office of AUDIO MOBIL in A-5282 Braunau - Ranshofen, Audio Mobil Straße 5-7, or the place of receipt specified by AUDIO MOBIL.
6. PAYMENT
a) Unless otherwise agreed in writing, payments shall be made at AUDIO MOBIL's discretion within 30 days with a 3% discount or within 60 days net after receipt of the goods or receipt of the invoice, whichever occurs later. If the invoice is received during periods of (designated) company vacations or public holidays, this period and thus the payment period shall commence on the first day of the opening of the company.
b) AUDIO MOBIL only accepts verifiable invoices! Incoming invoices must comply with all statutory Austrian regulations and taxation regulations and in particular with § 19 para. 1 2nd sentence UStG.
c) If the contractual partner is in default with an agreed service, AUDIO MOBIL is entitled, without prejudice to its other rights, to suspend its payment obligation until the contractual partner has performed. AUDIO MOBIL shall only be deemed to have withdrawn from the contract if this is expressly declared in writing.
d) AUDIO MOBIL is entitled to offset its own claims against those of the contractual partner if and insofar as AUDIO MOBIL notifies the contractual partner of this in writing by means of a declaration of set-off within the payment period.
e) The contractual partner is only entitled to offset its own claims against AUDIO MOBIL's claims if and insofar as these are recognized by AUDIO MOBIL or have been legally established. The same applies to the contractual partner's right of retention.
f) AUDIO MOBIL shall have the right to withhold payments until all outstanding claims from the business relationship have been settled in order to secure its claims and to secure claims from other legal transactions.
g) AUDIO MOBIL may refuse or withhold its performance until the counter-performance has been secured, even if the claims are not yet due, if the counter-performance appears to be jeopardized by poor financial circumstances of the contractual partner, or if insolvency proceedings are applied for or opened against the assets of the contractual partner. The same applies if the application for insolvency is rejected due to a lack of assets to cover costs, if the contractual partner effectively ceases to make payments, if the contractual partner approaches its creditors to conclude an out-of-court settlement or if the contractual partner's assets are seized without success (including by third parties).
7. WARRANTY
a) If AUDIO MOBIL has accepted the goods without reservation, the following agreements shall also apply at AUDIO MOBIL's discretion:
b) The goods or the service rendered must have the warranted characteristics or those required by AUDIO MOBIL, provide the agreed services and correspond to the state of the art in its design. They must not have any defects that cancel or reduce the value or suitability for the usual use or the use assumed or announced at the time of the order
c) The quality, dimensions and weights of the delivered goods shall be determined exclusively in accordance with the applicable standards. All deliveries and services must fully comply with the statutory accident prevention and safety regulations (CE conformity) applicable at the time of delivery.
d) If the goods lack the properties warranted or required by AUDIO MOBIL, if accident prevention or other safety regulations are not complied with or if the goods have other defects or faults, AUDIO MOBIL shall be entitled, at its own discretion, regardless of the severity of the defect,
- Elimination of the defect by improvement or addition of the missing part; or
- To demand the replacement of the defective goods;
- A right to a price reduction; or
- To assert a right of conversion (termination of the contract without notice).
- This shall not affect all claims by AUDIO MOBIL for compensation for damage caused by defects, costs of remedying defects and indirect or direct consequential damage caused by defects
e) If the contractual partner fails or refuses to fulfill its warranty obligation within a reasonable period of time, AUDIO MOBIL shall be entitled to remedy the defects itself or have them remedied by third parties or to procure a replacement elsewhere at the expense of the contractual partner. In urgent cases (e.g. in the event of imminent production stoppages), AUDIO MOBIL is entitled to rectify the identified defects at the expense of the contractual partner without setting a deadline.
f) If defects cannot be rectified on site, transportation costs shall be borne by the contractual partner.
g) AUDIO MOBIL shall be entitled to assert claims for defects within 4 weeks of unconditional acceptance, in the case of hidden defects within 2 weeks of discovery. Hidden defects shall also include defects in the goods that are only discovered during their processing or commissioning in the normal course of operations.
h) These warranty agreements also apply if the contractual partner installs or assembles the goods on behalf of AUDIO MOBIL. In this case, the warranty period begins with the unconditional acceptance of the fully assembled goods by AUDIO MOBIL or its customers in accordance with the written acceptance report.
i) Exclusions or limitations of liability of the contractual partner, in particular from the title of warranty or compensation for damages, are not accepted unless this has been expressly agreed in writing with AUDIO MOBIL. This also applies - but not exclusively - to changes in the statutory burden of proof at AUDIO MOBIL's expense, shortening of deadlines, recourse claims under Section 933b ABGB or similar.
j) The warranty period is 24 months from unconditional acceptance by AUDIO MOBIL, unless longer periods apply by law. The contractual partner shall provide a warranty for defects that are present at the time the goods are handed over. This shall be assumed until proven otherwise if the defect becomes apparent within the warranty period.
8. WITHDRAWAL FROM THE CONTRACT
a) Without prejudice to its other rights, AUDIO MOBIL is entitled to withdraw from the contract,
- If the execution of the delivery is impossible or is further delayed despite the granting of a reasonable grace period;
- If the contractual partner refuses performance or is clearly not in a position to make good performance within a reasonable period; or
- If concerns have arisen regarding the solvency of the contractual partner and the latter fails to provide suitable security at the request of AUDIO MOBIL.
b) In such cases, the contractual partner must compensate AUDIO MOBIL for all resulting disadvantages and lost profits.
c) Unless otherwise agreed in writing, the delivery or service shall be deemed indivisible. In such cases, AUDIO MOBIL is therefore entitled to withdraw from the contract in its entirety for the above reasons or may assert partial withdrawal with regard to an outstanding part of the delivery or service.
d) If an application is made to open insolvency proceedings against the assets of the contractual partner, the contract shall be automatically terminated with immediate effect.
9. PROVISION OF TOOLS AND MODELS
a) If the order includes the assumption of tool or model costs, the contractual partner hereby transfers ownership of tools and models manufactured or procured by him which have been paid for in full by AUDIO MOBIL. AUDIO MOBIL shall acquire co-ownership of tools and models partially paid for by AUDIO MOBIL in the ratio of its respective payment to the value of the item. Tools, models, software, drawings, samples or similar provided by AUDIO MOBIL remain the property of AUDIO MOBIL.
b) The contractual partner undertakes to use tools, models, software, drawings, samples or similar items provided or paid for by AUDIO MOBIL exclusively for the manufacture of goods ordered by AUDIO MOBIL, not to make them available to third parties and to return them to AUDIO MOBIL immediately upon completion of the order
c) The contractual partner must ensure that AUDIO MOBIL's tools and models are insured against fire, storm, burglary and vandalism damage under its existing insurance policies. The contractual partner assigns its claims under this insurance to AUDIO MOBIL and AUDIO MOBIL accepts this assignment
d) The contractual partner is obliged to carry out all necessary maintenance, inspection and servicing work for these tools and models in good time and free of charge.
10. RESERVATION OF TITLE
a) AUDIO MOBIL will not recognize any extension or renewal of a retention of title that goes beyond the simple retention of title.
11. LIABILITY, INDEMNIFICATION, INSURANCE COVER
a) Unless otherwise agreed in writing, AUDIO MOBIL shall be entitled to compensation for all direct or indirect costs incurred as a result of defective delivery, default or other conduct by the contractual partner in breach of contract. This includes, but is not limited to, damage defense costs, precautionary measures, recall actions, etc. AUDIO MOBIL shall inform the contractual partner of the content and scope of the recall measures to be carried out - as far as possible and reasonable - and give the contractual partner the opportunity to comment. If the statement is not made within a reasonable period of time, and if no amicable solution is reached, the recall action carried out by AUDIO MOBIL shall be deemed to be necessary and caused by the defect, unless the contractual partner proves the contrary. Any further legal claims remain unaffected.
b) The contractual partner shall indemnify AUDIO MOBIL on first demand against all third-party claims, including the necessary expenses for legal action.
c) At AUDIO MOBIL's request, the contractual partner shall enter into the legal dispute with the third party at its own expense. The contractual partner shall support AUDIO MOBIL actively and at its own expense in all legal disputes in connection with its deliveries and services, as well as in official orders and investigations, and shall provide all witness statements, documents, etc.
d) The contractual partner undertakes to maintain public liability insurance with a lump sum cover of EUR 10 million for personal injury and property damage. The cover must also extend to damage occurring abroad.
e) In addition, the contractual partner undertakes to maintain product recall cost insurance including extended product recall cost insurance with cover of at least EUR 10 million. The cover must also extend to damages arising abroad.
f) Upon request, the contractual partner shall provide AUDIO MOBIL with a copy of the insurance policy or a confirmation from the insurance company.
12. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT
a) The contractual partner warrants that the delivered goods are free from third-party rights.
b) The contractual partner shall indemnify AUDIO MOBIL on first demand against all claims asserted against AUDIO MOBIL by third parties due to the infringement of intellectual property rights. This includes all costs, including the necessary expenses for legal action, unless the contractual partner is not responsible for the infringement.
c) Software, implementation documents, such as plans, sketches and other technical documents, as well as samples, catalogs, brochures, illustrations and the like, remain the intellectual property of AUDIO MOBIL and are subject to the confidentiality agreement, which the contractual partner accepts together with these terms and conditions.
13. DATA PROTECTION
a) The contractual partner shall comply with all applicable data protection regulations, in particular the EU General Data Protection Regulation (GDPR), and shall indemnify and hold AUDIO MOBIL harmless in this regard.
b) The parties undertake to maintain absolute confidentiality vis-à-vis third parties with regard to the knowledge they obtain from the business relationship - even after termination of the business relationship.
14. COMPLIANCE
a) The contractual partner undertakes to act responsibly in accordance with the highest ethical standards and to comply with the principles set out in the AUDIO MOBIL Group's Code of Conduct (available at www.audio-mobil.com) or at least equivalent principles. In particular, the contractual partner undertakes to introduce and comply with regulations and to take measures that meet the standards of this Code of Conduct.
b) AUDIO MOBIL reserves the right to audit the contractual partner for compliance with at least equivalent principles and guidelines as set out in the Code of Conduct (in particular with regard to the human rights and environmental protection-related provisions contained therein) after reasonable advance notice. The contractual partner shall allow AUDIO MOBIL or its representatives to conduct on-site audits at the contractual partner's locations. The audits shall be carried out in close coordination and cooperation with the contractual partner and in compliance with any business secrets and applicable data protection regulations. The contractual partner must ensure satisfactory follow-up of the observations made during this audit and take the agreed remedial measures.
c) The contractual partner is obliged to make every effort to ensure that its suppliers and service providers also comply with these principles and introduce appropriate regulations or measures.
d) A breach of these provisions or the Code of Conduct or a failure to implement specified measures constitutes a breach of a material contractual obligation on the part of the contractual partner. Without prejudice to further rights, AUDIO MOBIL therefore reserves the right to demand information about the facts of the case and, if necessary, in consultation with the contractual partner and after granting a reasonable period of time, to demand appropriate remedial measures if non-compliance is suspected or established. If these are not provided or if the breach is serious, AUDIO MOBIL reserves the right, without prejudice to further rights, to terminate individual or all contractual relationships with the contractual partner without notice.
15. CONTRACTUAL PENALTY
a) In the event that the contractual partner breaches its obligations arising from these terms and conditions, a contractual penalty in the amount of
€ 100,000 is agreed. Any damage incurred by AUDIO MOBIL that exceeds the contractual penalty must also be compensated, whereby in this case full satisfaction must always be provided.
16. GENERAL
a) Should individual provisions of the contract or these provisions be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible to the intended purpose.
b) Insofar as these terms and conditions do not provide for any regulation, the statutory provisions shall apply exclusively.
17. ARBITRATION AND APPLICABLE LAW
a) All disputes arising out of this contract or relating to its breach, termination or nullity shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one arbitrator appointed in accordance with these Rules. The language applicable in the arbitration proceedings shall be German.
b) The contract shall be governed by Austrian substantive law to the exclusion of the conflict of law rules of private international law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
