1 General, sphere of applicability
(1) These General Sales Terms and Conditions (GSTAC) shall apply to all our business relationships with our customers (hereinafter referred to as the “Purchasers“). The General Sales Terms and Conditions shall apply only if the Purchaser is an entrepreneur, a legal entity under public law or a special fund under public law.
(2) The General Sales Terms and Conditions shall apply in particular for contracts governing the sale and/or the delivery of moveable items (hereinafter referred to as the “Goods“) without any consideration of whether we produce the Goods ourselves or buy them from suppliers. The General Sales Terms and Conditions shall apply in the particular version concerned as a framework contract also for future contracts governing the sale and/or delivery of moveable items with the same Purchaser without our having to draw attention to this in each individual case; we shall inform the Purchaser in such a case without delay about any amendments to our General Sales Terms and Conditions.
(3) Our General Sales Terms and Conditions shall apply exclusively. Any deviating, contrary or supplementary general terms and conditions of the Purchaser shall only become a part of this Contract then and inasmuch as we have expressly agreed to their application. This requirement for agreement shall apply in every case, for example also if we carry out delivery to the Purchaser without reservation and with knowledge of the Purchasers general terms and conditions.
(4) Any individual agreements made with the Purchaser in the individual case (including ancillary arrangements, supplements and amendments) shall always have priority over these General Sales Terms and Conditions. For the content of such agreements, an agreement made in written form or our confirmation given in written form shall be decisive.
(5) Declarations and notices of legal significance which are to be given to us by the Purchaser after conclusion of contract (e.g. the setting of periods, notices of defect, declaration of withdrawal or reduction) require written form to be effective.
(6) Indications to the applicability of statutory regulations only have clarifying significance. Even without such clarification, the statutory regulations shall apply therefore without their being amended directly or excluded expressly in these General Sales Terms and Conditions.
(7) For orders through our online shop, the indications given there shall be observed separately.
2 Conclusion of Contract outside the online shop
(1) For the conclusion of contract through our online shop, the “General Terms and Conditions for Purchases in the Online Shop“ included there shall apply.
(2) Our offers outside the online shop are subject to confirmation and non-binding. This shall also apply when we have given the Purchaser catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN norms), other product descriptions or documents – also in electronic form – in which we reserve title and copyright.
(3) The acceptance of the offer of purchase may be declared by us to the Purchaser either in written form or through delivery of the Goods to the Purchaser.
3 Delivery dates
(1) Delivery dates or periods, which have not been expressly agreed as binding, are exclusively non-binding offers.
(2) Inasmuch as we cannot keep to binding delivery periods for reasons for which we do not bear the responsibility (non-availability of service), we shall inform the Purchase about this without delay and, at the same time, give notice of the probably, new delivery period. If the service is not available even within the new delivery period, we are entitled to withdraw either fully or partly from the Contract; any already provided counter performance of the Purchaser shall be refunded without delay. Any self-delivery by our suppliers shall be regarded as non-availability in these terms if we have concluded a congruent hedge transaction, neither we nor our suppliers have incurred any fault and we are not obliged to procurement in the individual case.
(3) The rights of the Purchaser in accordance with section 8 of these General Sales Terms and Conditions and our statutory rights, in particular in case of exclusion of the obligation of service (e.g. due to impossibility or unreasonableness of service and/ or subsequent performance), are not affected.
4 Delivery, transfer of risk, return of Goods free of defects
(1) Delivery shall take place ex works which shall also be the place of performance. On request by and at the expense of the Purchaser, the Goods shall also be sent to another place of destination (sale to destination). Inasmuch as nothing else has been agreed, we are entitled to determine the type of shipping (in particular the carrier, the dispatch route, packaging) ourselves.
(2) The risk of accidental destruction or accidental deterioration of the Goods shall be transferred at the latest on being handed over to the Purchaser. In the case of sale to destination, however, the risk of accidental destruction or accidental deterioration of the Goods and the risk of delay shall be transferred to the carrier or the haulage contractor already on delivery of the Goods to the carrier or the haulage contractor.
(3) There is no take-back obligation for Goods delivered free of defects. If we declare that we are prepared, by way of fairness, to take back Goods which are in faultless condition and in their original packaging, a Goods credit deducting a restorage fee of 10% of the calculated price shall be made after the Goods have been received by us and the Purchaser has provided verification of delivery. If the Goods have been unpacked but are complete and undamaged, 20% of the calculated price shall be deducted for control, packaging and re-storage work. There shall be greater deduction if the Goods are incomplete and/or damaged whereby in such cases we reserve the right to refuse to take back the Goods.
Any set-off shall only be permitted after credit has been given. Before return of the Goods in the case of being taken back for reasons of fairness, the Purchaser shall request a RMA number (Return Merchandise Authorization) as the Goods shall be quickly and correctly assigned by us on receipt.
5 Prices, payment conditions
(1) Inasmuch as, in the individual case, nothing else has been agreed, our current prices, which are applicable at the point of time of conclusion of contract, shall apply ex store plus the statutory VAT. (2) In the case of sale to destination (section 4 sub-section 1), the Purchaser shall bear the transport costs ex store and the costs of any transport insurance if desired by the Purchaser. Any customs duties, charges, taxes or other public levies shall be borne by the Purchaser. We shall not take back any transport or any other packaging costs in accordance with the stipulation of the Packaging Regulation; they shall become the property of the Purchaser with the exception of pallets.
(3) Our invoices are due on issuance and payable net without deduction. Any other payment period requires separate agreement. We reserve the right to request advance payment in individual cases. If direct debit has been agreed, the payment amount shall be due one day after the receipt of invoice unless a different due date has been stated on the invoice. Advance information of direct debit (SEPA pre-notification) shall take place together with the invoice. Receipt of advance information, at the latest one day before due date is sufficient (debit of invoice sum). We are entitled to demand interest amounting to the credit costs that we have to pay, but to at least one percent per month, from the Purchaser, who is a businessman in the terms of the Commercial Code, from due date onwards and from the Purchaser, who is not a businessman, from default onwards.
(4) The Purchaser shall only have the right to setoff or retention inasmuch as his claim has been established with legal effectiveness or is undisputed. In the case of defects in the delivery, the counter rights of the Purchaser remain unaffected.
6 Reservation of title
(1) Up until full payment of all our present and future demands from the Purchase Contract and a current business relationship (secured demands), we reserve title in the sold Goods.
(2) The Goods, which are subject to reservation of title, may neither be assigned to third parties before full payment of the secured demands, nor transferred for security. The Purchaser shall notify us without delay and in writing if and inasmuch access by third parties to Goods, which belong to us, takes place.
(3) In the case of behavior on the part of the Purchaser contrary to contract, in particular in the case of non-payment of the due purchase price, we shall be entitled, in accordance with the statutory regulations, to withdraw from the Contract and/or demand surrender of the Goods on the basis of the reservation of title. A demand for surrender does not at the same time mean withdrawal; rather we are entitled to demand surrender of the Goods and reserve the right to withdrawal. If the Purchaser does not pay the due purchase price, we may only assert these rights if we have previously set the Purchaser a reasonable period for payment without success or such setting of a period is not necessary in accordance with the statutory regulations.
(4) The Purchaser is entitled to resell and/or process the Goods, to which title is reserved, in the correct course of business. In such a case, the following provisions shall apply in addition:
(a) reservation of title shall extend to products arising from the processing, mixing and combining of our Goods to their full value, in which case, however, we shall be regarded as the producer. If, in processing, mixing or combining them with the Goods of third parties their right to ownership remains, we shall acquire co-ownership in the ratio of the invoice value of the processed, mixed or combined Goods. Otherwise, the same shall apply to the product emerging as to the Goods delivered under the reservation of title.
(b) The Purchaser shall assign demands arising from re-sale of the Goods or the products against third parties already now in full or at the amount of any co-ownership share of ours in accordance with the above paragraph as surety to us. We accept such assignment. The duties of the Purchaser stated in sub-section 2 shall also apply in view of the assigned demands.
(c) The Purchaser is also authorized to collect the demand as well as we are. We undertake not to collect the demand as long as the Purchaser meets his payment obligations towards us, does not come into default of payment, no application for the opening of insolvency proceedings has been made and no other defect in his efficiency is apparent. Is this is the case, however, we may demand that the Purchaser notifies us of the assigned demands and their debtors, supplies all information necessary for collection, hands over the appropriate documents and notifies the debtors (third parties) of assignment.
(d) If the realizable value of the sureties exceeds our demands by more than 10%, we shall release sureties in accordance with our choice on request by the Purchaser.
7 Purchasers claims for defects
(1) The statutory regulations shall apply to the Purchasers rights in respect to material and legal defects including incorrect and reduced delivery and incorrect or defective assembly instructions) inasmuch as nothing else has been determined in the following. In all cases the statutory special regulations in case of final delivery of the Goods to a consumer remain unaffected.
(2) The basis of our defect liability is, above all, the agreement made concerning the composition of the Goods. All product descriptions concerning the Goods, which are the subject matter of the individual contract, shall be regarded as agreement concerning the composition of the Goods; there is no difference here whether the product description originates from the Purchaser, from the producer or from us.
(3) Inasmuch as the composition has not yet been agreed, it shall be judged in accordance with statutory regulation whether there is a defect or not. We do not assume any liability, however, for public statements by the producer or other third parties (e.g. advertising statements).
(4) The claims for defect claims of the Purchaser, who is a businessman, require that he has met his statutory examination and complaint duties without delay. Notice is regarded as without delay if it takes place within seven days in written form with a description of the defect. The same shall apply for defects which are discovered later.
(5) If the item, which has been delivered, is defective, we may first of all choose whether we provide subsequent performance by eliminating the defect (subsequent improvement) or by delivery of an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory prerequisites remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the Purchaser paying the due purchase price. The Purchaser is, however, entitled to retain a reasonable part of the purchase price in the ratio to the defect.
(7) The Purchaser shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the Goods which are subject to complaint for purposes of testing. In the case of replacement delivery, the Purchaser shall return the defective item in accordance with the statutory regulations. Subsequent performance means neither removal of the defective item nor re-installation if we were not originally obliged to install.
(8) We shall bear the expenditure necessary for examination and subsequent performance, in particular the transport, way, labor and material costs (not: removal and installation costs) if there is in actual fact a defect. If however, the defect elimination demand of the Purchaser turns out to be unjustified, we may demand the costs arising for this from the Purchaser.
(9) In urgent cases, e.g. if operating safety is endangered or to avert disproportionate damage, the Purchaser has the right to eliminate the defect himself and to demand compensation for the objectively necessary expenses for this from us. We shall be informed about the action taken independently, if possible previously. There is no right to act independently if we would have been entitled to refuse such subsequent performance in accordance with the statutory regulations.
(10) If subsequent performance has failed or a reasonable period to be set for the subsequent performance by the Purchaser has expired without success, or is dispensable in accordance with the statutory regulations, the Purchaser may withdraw from the Purchase Contract or reduce the purchase price. In the case of inappreciable defects, there is however no right of withdrawal.
(11) Any Purchasers claims to damages or compensation for futile expenditure only exist in accordance with the stipulations of section 8 and are otherwise ruled out.
8 Other liability
(1) Inasmuch as nothing else evolves from these General Sales Terms and Conditions including the following provisions, we shall be liable in the case of breach of contractual and non-contractual duties in accordance with the relevant statutory regulations.
(2) We shall be liable for damages – no matter for which legal reason – in the case of intent and gross negligence. In the case of ‚simple‘ negligence, we shall only be liable
a) for damage arising from fatal injury, physical injury or damage to the health
b) for damage arising from the breach of a significant contractual duty (duty the performance of which enables correct execution of the Contract in the first place and on the adherence to which the contract partner may and generally rely); in this case, however, our liability is limited to compensation for the foreseeable, typically arising damage.
(3) The limitations of liability stated in sub-section 2 shall not apply inasmuch as we have maliciously concealed a defect or have assumed warranty for the composition of the Goods. The same shall apply to the Purchasers claims in accordance with the Product Liability Act.
(4) Due to any breach of duty, which does not consist of a defect, the Purchaser may only withdraw (from the Contract) or terminate if we are responsible for the breach of duty. Any free termination right of the Purchaser is ruled out. Otherwise the statutory prerequisites and legal consequences shall apply.
Active re-sale of our products by the Purchaser in countries outside Australia or active or passive re-sale in Australia requires our previous expressed and written approval. In the case of such re-sale without our approval, the Purchaser shall indemnify us against any claim in particular for reasons of product liability or patent protection.
10 Purchasers own examination duties
The Purchaser shall check within his own responsibility whether a product purchased by us may be assembled or used in accordance with the traffic and traffic licence provisions applicable in the intended place of use. We shall assume no liability for non-permitted assembly or taking into service unless we have expressly made a corresponding statement about the specific permissibility for the product.
11 Choice of law and place of jurisdiction
The law of Australia shall apply for these General Sales Terms & Conditions and all legal relationships between Aurora Rally Equipment Australia and the Purchaser.
12 Dispute resolution procedure
1. It is not our policy, nor are we under any obligation to participate in any procedure before a consumer dispute body.
2. Any dispute resolution mutually agreed upon by both parties will be conducted in accordance with ORD (Online Dispute Resolution) standards of practice.