Terms & Conditions

Division Mobility

(Date: 04/2017)

I. Scope

(1) Our deliveries, services and offers shall be based solely on these Standard Terms and Conditions of Delivery. Any standard terms and conditions of business of the customer shall be effective only if they do not conflict with these General Terms and Conditions and the conditions in the order confirmation or if we have given our express written consent to their applying. Our Standard Terms and Conditions of Delivery shall also apply if we make deliveries and/or provide services without reservation despite being aware of terms and conditions of the customer which conflict with or differ from our Standard Terms and Conditions of Delivery.

(2) All arrangements concluded between us and the customer for the purpose of fulfilling this contract shall be set down in writing.

(3) Our Standard Terms and Conditions of Delivery shall apply towards entrepreneurs, juristic persons under public law and special public-law funds within the meaning of Section 310 (1) of the German Civil Code (BGB) and towards private persons.

(4) Our Standard Terms and Conditions of Delivery shall also apply to all future business transactions, even if they have not been expressly agreed for those transactions again.

 

II. Conclusion of contracts

(1) Our offers shall be without commitment and non-binding, unless we have expressly indicated that they are binding. Agreements with our representatives shall not be legally binding until we have confirmed them in writing. Depictions and drawings enclosed with our offers, as well as weights specified in them, are to be regarded as approximations.

(2) A contract shall not be formed with the customer until we have accepted the customer’s order in writing in the form of an order confirmation. If the order confirmation differs from the customer’s order, the scope of the contractually owed services shall be defined by the written order confirmation and its written annexes, unless the customer objects to the content of the order confirmation directly after receiving it.

(3) Documents we have supplied and/or details we have given, such as depictions, drawings, weights and measures, shall be binding only if they are expressly specified as part of the contract or are expressly referred to.

(4) We retain the right of ownership and copyright to drawings, cost estimates and other documents provided to our customers. Our offers and documents shall not be made available to third parties, in particular rival companies, and shall be returned upon request. We always reserve the right to decide whether to accept a contract or not despite having submitted a prior offer.

(5) The documents shall not be disclosed to third parties, including after the contract ends. The obligation to maintain confidentiality shall only end when and insofar as the knowledge embodied in the provided documents becomes public domain. If the customer culpably violates the obligation to maintain confidentiality, it shall be liable to pay a contract penalty of € 50,000, which may be reduced if it proves that the violation was insignificant.

 

III. Delivery period

(1) The delivery period shall commence when we send our order confirmation, but not before all technical matters relating to the order have been clarified, not before the documents, permits and approvals to be obtained by the customer have been provided and not before an agreed down-payment has been received. The delivery periods in the order confirmation shall be non-binding. Before we can otherwise comply with our delivery and/or performance obligations, the customer must fulfil its obligations properly and on time, in particular by undertaking all preparatory measures and on-site work and services under this contract. The performance period shall be extended accordingly if the customer does not fulfil its obligations.

(2) The delivery period shall be extended appropriately in the event of measures as part of labour disputes, in particular strikes and lockouts, and if unforeseen events for which we are not to blame occur, insofar as such impediments demonstrably and significantly influence completion or delivery of the object to be supplied or its installation/assembly and were not foreseeable at the time the contract was concluded. This shall also apply if the circumstances occur at suppliers. We shall inform the customer as soon as possible when such circumstances begin and end.

(3) If we are in delay in delivery for reasons for which we are to blame, the customer shall be authorised to rescind the contract subject to the statutory conditions. A contract penalty shall not be owed in any case whatsoever.

(4) The following shall apply as regards our liability in the event of delay in delivery: If the delay is due to violation of a cardinal contractual obligation through slight negligence, our liability shall be limited to the foreseeable damage typical of the contract. Otherwise, claims for damages due to slight negligence shall be excluded. Apart from that, our liability in the event of delay in delivery shall be based on the statutory regulations.

(5) The agreed delivery periods shall be regarded as having been observed

a) In the case of delivery without installation/assembly: when the ready-to-operate consignment has left our company or we have notified the customer that it is ready for shipment.

b) In the case of delivery with installation/assembly: as soon as the object supplied is ready for operation.

So that we can comply with our delivery obligation, the customer must have first fulfilled its obligations properly and on time.

(6) Risk shall pass to the customer no later than when the objects to be supplied are shipped, even if we supply them free domicile, or in the case of delivery with installation/assembly on the day they are ready for operation.

 

IV. Delay in taking delivery – Termination

(1) The statutory provisions shall apply to delay in taking delivery by the customer. If it has been agreed that the customer shall perform activities or provide cooperation or deliverables, the customer shall be in delay in taking delivery if it does not perform the agreed activities or provide the agreed cooperation or deliverables within the deadline we have set for it. If the customer is in delay in taking delivery, we can – in accordance with the statutory provisions – demand reimbursement of our extra costs (Section 304 BGB) or rescind the contract and demand damages.

(2) The same shall apply if the customer discontinues its payments, insolvency proceedings on its assets are filed for or out-of-court composition proceedings are filed for.

 

V. Prices and terms of payment

(1) The price stated in the order confirmation shall be binding. Statutory value-added tax shall be payable on top of all the prices, unless the goods in question are intended for export and so no value-added tax has to be disclosed on them.

(2) The prices are ex works, excluding packaging. The packaging shall be charged at cost price, but shall not be taken back. Unless otherwise agreed in an individual case, the price shall not include other services and ancillary services of the contractor (e.g. assembly, installation) and any incidental costs (e.g. proper packaging, transportation charges, including any transport and third-party liability insurance).

(3) Changes to the construction of the object to be supplied requested by the ordering party after the order has been confirmed can only be made free of charge if we do not incur any additional costs as a result. We shall charge for changes made at the customer’s request without exception. All payments shall be made as agreed, free our payment office, without any deductions and as stated on the invoice.

(4) Unless otherwise defined in the order confirmation, payments shall be due when the invoice is received. The customer shall be in default 30 days after the invoice date without having to be warned by us.

(5) The customer shall have the right to offset its counterclaims only if they have been ruled on finally and conclusively as being justified by a court of law, are not in dispute or have been acknowledged by us. The customer shall be authorised to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.

(6) The customer shall not have a right of retention of its counterclaims are minor, such as if parts of the documentation are missing.

 

VI. Reservation of ownership

(1) All the supplied goods shall remain our property until all claims have been settled (retained goods). This shall also apply if payments are made on specially designated claims.

(2) The retained goods shall be reworked or processed on our behalf as the manufacturer within the meaning of 950 BGB, without any obligation for us. The processed goods shall be regarded as retained goods.

(3) If the retained goods are processed, combined or mixed with other goods by the customer, we shall be entitled to co-ownership of the object in the ratio of the invoice value of the retained goods to the invoice value of the other goods used.

(4) If our ownership ceases due to the fact that the retained goods are combined and mixed with other goods, the customer hereby assigns to us the ownership rights to which it is entitled in respect of the new stock or object to the scope of the invoice value of the retained goods. The customer shall hold them in safekeeping for us free of charge. The resultant co-ownership rights shall be deemed to be retained goods. If the customer is not the party that has combined or mixed the retained goods, it shall be liable to ensure that we obtain the above rights.

(5) The customer may only sell the retained goods in its ordinary course of business, at its normal terms and conditions of business and as long as it is not in default, provided that it agrees a reservation of ownership with its purchasers and that the claims from resale of the retained goods pass to us. The customer shall not be authorised to dispose of the retained goods in any other manner.

(6) The customer’s claims from sale of the retained goods are hereby assigned to us. They shall serve as security to the same extent as the retained goods. If the retained goods are sold by the customer together with other goods not sold by us, the claim from their resale shall be assigned only to the invoice value of the sold retained goods. If goods to which we are entitled to co-ownership rights are sold, the claim shall be assigned to the amount of the co-ownership share.

(7) If the retained goods are used by the customer to fulfil a contract for work or work supply contract, the above provisions shall apply accordingly to the claim from this contract.

(8) If the value of the existing security exceeds the secured claims by more than 10%, we shall be obliged at the customer’s request to release security at our discretion.

 

VlI. Warranty – Breach of duties – Period of limitation

(1) The Principal's guarantee rights require the Principal to have fulfilled his legal inspection and notification obligations. Deliveries of the Contractor must be inspected for damages, obvious defects and completeness immediately upon their receipt. Anything conspicuous about the packaging or external appearance of the delivery objects or the number of packages must be documented without delay (photographs, videos) and reported to the Contractor by email within two (2) business days. This shall also apply to any subsequently discovered defects.

Any damage must be noted in writing on the consignment note or handover form and reported to the respective service provider. Incorrect deliveries or missing parts must be reported to AMF-Bruns' customer support department within 3 business days.

(2) If there is a defect within the warranty period and its cause already existed at the time of the passage of risk, we can subsequently remedy the problem at our choice by rectifying the defect or supplying an object that is free of defects. The product complained about shall be sent to us for repair. The costs of the cheapest means of sending and returning the products from/to the customer’s domestic address agreed for the original delivery of the products shall be borne by us, if the complaint proves to be justified. The defect shall be rectified by the faulty products being replaced or repaired by us. If subsequent remedy fails, the customer shall be authorised at its choice to rescind the contract (rescission) or reduce the delivery price by means of a declaration addressed to us (reduction).

(3) If our operating or maintenance instructions are not heeded, changes are made to the objects supplied, parts are replaced or consumables are used that do not comply with the original specifications, our warranty and liability shall cease if and insofar as one of these circumstances has caused a defect or damage, unless the defect is not causally linked to the changes, and shall cease if regulations on shipment, packaging, installation, handling, use or maintenance are not heeded or if there has been incorrect assembly or commissioning by the customer or third parties. Liability for normal wear and tear shall be excluded. In particular, we shall not be liable for changes to the condition or the mode of operation of our products caused by incorrect storage or unsuitable operating supplies and climatic or other effects. The warranty shall not cover defects that are due to design errors or choice of unsuitable material, if the ordering party has prescribed the design or material despite our prior warning. We shall not assume any liability for parts provided by the ordering party.

(4) The guarantee period for claims and rights due to delivery or performance defects - for whatever legal reason - shall be 24 months, irrespective of the date on which the Principal reports the defects, and shall commence upon delivery to our warehouse. The guarantee period shall expire, at the latest, 36 months after the handover. This statute of limitations shall also apply to any damage claims related to the defect, irrespective of the legal basis of the claim. AMF-Bruns shall not assume any liability for agreements between contract partners and the end customer.

(5) Rectification or replacement deliveries shall not reset the guarantee period. The 24-month guarantee period shall require annual maintenance by a service center authorized by us in accordance with our instructions. According receipts must be submitted on request. Should guarantee claims be exercised, only AMF-Bruns original parts may be used. If our operating, installation or maintenance instructions are not followed or if changes are made to the delivery objects, parts are replaced or consumables are used that do not correspond to the original specifications, guarantee claims shall not apply and we shall not be liable if defects or damages were caused by one of these circumstances. Exceptions shall require our express permission. Liability for normal wear and tear shall be excluded. Reimbursement for breakdown, rental car or replacement costs or other asset damages shall be excluded.

(6) Guarantee work shall require:

- Knowledge of hydraulics

- Knowledge of the installation / adjustment of mechanical components

- Experience with retrofitting mechanical / hydraulic components

- Empathy towards restricted persons (necessary for dialog with customers regarding defect descriptions)

- Basic knowledge of motor vehicle electrical engineering

- The hydraulic lift product group requires basic training at AMF-Bruns. Following according coordination, standard technical work (e.g., fuse renewal, attaching screws, replacing lamps, etc.) may be performed without such training

(7) The following information shall be required for guarantee processing:

- Product type

- Serial number

- Production date

- Repair date

- Detailed error description

- Detailed repair description

(8) For guarantees, costs for replacement deliveries, rectification or repairs performed by external companies, etc., can only be assumed following prior coordination and approval by us. Reported guarantee cases must be handled and, if applicable, invoiced by the contract partner within 4 weeks. AMF-Bruns may request additional documentation or images—which the contract partner must provide without delay—for additional documentation or error descriptions.

(9) AMF-Bruns may reject guarantee requests not submitted in time. Should AMF-Bruns reject a guarantee claim, the contract partner may request the return of the materials within 14 days. Otherwise, the materials shall be destroyed. In such cases, the transport costs shall be borne by the contract partner.

(10) Guarantee work shall be performed by an authorized service center in a timely manner. In special cases, guarantee work may also be performed by AMF-Bruns or its operational staff. The vehicle must be provided for this free of charge.

(11) If replacement parts have to be returned, please return the parts within 10 days, since a fee will be charged otherwise (Note: No express deliveries; costs shall not be assumed). Guarantee claims shall expire if requested used parts are not returned. Refunded used parts shall become the property of AMF-Bruns. Returned goods must include the required papers (guarantee request copy, return delivery note / delivery note copy).

(12) AMF-Bruns shall expressly reserve the right to review any guarantee claims. The appropriateness of material and wage costs shall be reviewed. Rejections shall be explained factually. In case of damages, contract partners must observe their damage minimization obligations. In case of insufficient cooperation by the contract partner, AMF-Bruns may assert claims for any resulting damages. In case of commercial transactions, please refer to Section 377 of the German Commercial Code [Handelsgesetzbuch, HGB] and the related obligations of the Principal for maintaining guarantee claims.

 

Vlll. Limitation of liability

(1) Unless otherwise specified in these Terms and Conditions of Delivery, we shall be liable for damage and reimbursement of futile expenses within the meaning of Section 284 BGB (hereinafter referred to as “damages”) due to the violation of contractual or non-contractual obligations only in the event of intent or gross negligence on the part of our legal representatives or vicarious agents, in the event of injury to life, body or health, due to assumption of a warranty or a procurement risk, due to violation of cardinal contractual obligations, or pursuant to compulsory liability under the German Product Liability Act (“Produkthaftungsgesetz”) or other compulsory liability. However, damages for the violation of cardinal contractual obligations shall be limited to foreseeable damage that is typical of the contract, unless we are liable due to intent or gross negligence on the part of our legal representatives or vicarious agents or due to injury to life, body or health or assumption of a warranty or a procurement risk. The above provisions shall not entail a shift in the burden of proof to the detriment of the ordering party.

(2) Further claims of the customer – on whatever grounds – shall be excluded. In principle, we shall therefore not be liable for damage that has not occurred to the object supplied; in particular, we shall not be liable for loss of prospective profits or other indirect financial loss on the part of the customer. Any liability for loss due to outages or stoppages or for the costs of temporary procuring a substitute, such as the costs of a hired car, shall be excluded.

(3) Further claims in the event of malicious non-disclosure of defects or the assumption of a warranty for qualities and/or service life shall remain unaffected.

 

lX. Applicable law

German law shall apply to the contractual relationship.

 

X. Arbitration – Place of jurisdiction – Place of performance – Passage of risk

(1) All disputes arising in connection with this contract or its validity shall be ruled on finally and conclusively in accordance with the arbitration code of the German Institute for Arbitration (DIS), with any recourse to the courts of law being excluded.

(2) The arbitration proceedings shall be held in Hamburg. There shall be three arbitrators. If the customer has its registered office in a non-German-speaking foreign country, the arbitration proceedings shall be held in English.

(3) Unless otherwise specified in the order confirmation, the place of our registered offices shall be the place of performance.

 

XI. Severability clause

If one or more provisions of these Standard Terms and Conditions of Delivery are or become invalid, this shall not affect the validity of the other provisions; the remainder of the concluded contract shall remain effective. The invalid provision shall be replaced by a valid arrangement which corresponds as closely as possible to the intended economic purpose of these Standard Terms and Conditions of Delivery.