Legal

General terms and conditions

Note: This English version is provided for orientation only. The German version is legally binding.

Preamble

Autowelt GmbH, Industriestraße 1, 97618 Niederlauer, represented by its managing director Sergej Beitel (hereinafter “Autowelt”), offers customers repairs and overhauls as well as the sale of overhauled engines and gearboxes for commercial vehicles and construction machinery.

The following provisions are intended to regulate the legal relationship between Autowelt and the respective customer as comprehensively and understandably as possible. For this reason, some terms are explained in advance for a better understanding of the provisions.

Services

Services are performances in which Autowelt owes the performance of a service, but not a result.

Work services

Work services are performances in which Autowelt owes a finished work.

Sale

Under a sales contract, Autowelt owes the handover of an item and the transfer of ownership of it.

§ 1 General, scope and changes

The following terms conclusively govern the contractual relationship between Autowelt and the respective customer for the commissioned services and apply exclusively, i.e. conflicting terms of the customer or terms deviating from these terms and conditions are not recognised, unless Autowelt has expressly agreed to them in an individual case.
They apply to businesses and consumers. A business within the meaning of these GTC is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or self-employed professional activity when ordering the services. A consumer within the meaning of these terms is any natural person who places the order for purposes that can be attributed neither predominantly to their commercial nor to their self-employed professional activity.
Autowelt reserves the right to change the general terms and conditions at any time without giving reasons. Autowelt will notify the customer of the change to the general terms and conditions no later than two weeks before they take effect and will send them to the customer. If the customer does not consent to the amended terms and conditions within two weeks of receiving the notice of change, Autowelt is entitled to terminate the contractual relationship concerned at the time the amended terms and conditions are due to take effect, or to continue it under the previous terms.
Amendments and additions to the contract and to these general terms and conditions require at least text form as a matter of principle. This also applies to the amendment of this provision.
All prices are net euro prices if the customer is a business. If the customer is a consumer, the prices are gross euro prices.
In the event of conflicts within the contractual relationship between the parties, the following order of precedence shall apply:
a) individual agreements
b) these general terms and conditions
c) the statutory provisions.

§ 2 Conclusion of contract, subject matter, scope of services, place of performance

The respective contract is concluded when the customer confirms the offer submitted by Autowelt in writing, in text form or orally. Autowelt is bound to its offer for 14 days.
Autowelt begins the agreed service at the time agreed in the respective contract. Deadlines are automatically extended by the period during which Autowelt is prevented from performing the service through no fault of its own. This applies in particular in cases of force majeure, strikes, pandemics and epidemics.
The scope of the services to be provided by Autowelt results from the contract concluded between the parties and the information in the respective offer to the customer that refers to it.

Commissioning and/or installation of engines, gearboxes and/or spare parts are not part of a sales contract, but require a separate order in accordance with § 2 no. 1 of these GTC.
Support going beyond the obligations under this contract is not owed unless separately agreed.
Where Autowelt owes services to the customer, e.g. support services, Autowelt acts solely in an advisory capacity. In this case Autowelt does not owe the result/customer objective sought by the customer for the commissioned services.
Events or developments occurring after the completion of work steps or of the order itself do not oblige Autowelt to update the findings already produced or to revise information passed on to the customer.
Autowelt reserves the right to extend services and make improvements if these serve technical progress, appear necessary to prevent misuse, or if Autowelt is obliged to do so by law.
Unless otherwise agreed, Autowelt may also use third parties to perform the services. Without prejudice to Autowelt's rights in the event of default by the customer, the provision periods are extended by the period during which the respective contractual partner fails to meet its obligations towards Autowelt.
If Autowelt is in default with the owed performance, the customer is entitled to withdraw from the contract only if Autowelt fails to meet a reasonable grace period set by the customer.
If Autowelt itself is not supplied although it has placed matching orders with reliable suppliers, it is released from its obligation to perform and may withdraw from the contract. It is obliged to inform the customer without delay of the unavailability of the service and will reimburse any consideration already provided by the customer without delay.
Where the transaction is a commercial transaction on both sides within the meaning of the German Commercial Code, the customer will inspect the ordered goods immediately after delivery. This applies in particular with regard to the completeness of the goods and their respective functionality. Defects found during this inspection, or which are readily detectable, must be reported to Autowelt without delay. A detailed description of the defect must be enclosed. If the customer fails to give notice, the goods are deemed approved, unless the defect was not recognisable during the inspection.
Defects in the goods that cannot be detected during the proper inspection pursuant to number 11 must be reported to Autowelt without delay after their discovery, insofar as the transaction is a commercial transaction on both sides; otherwise the goods are deemed approved also with regard to this defect.
Unless services are performed on site at the customer's premises, the place of performance is Autowelt's registered office.

§ 3 Duties of the customer

The customer's obligations result from the respective offer, the individual agreements and/or these terms and conditions.
The customer supports Autowelt in carrying out the work, insofar as this is reasonable. Any necessary preparatory work of any kind must be carried out by the customer in good time.
The customer provides Autowelt free of charge, in good time before the planning and performance of the services owed, with all materials, documents, information and records necessary for performing the services.
The customer shall ensure that Autowelt can begin the work in good time at the agreed start of the contract and carry it out without disruption. The customer ensures that any services for which third parties are responsible and which may affect or be connected with Autowelt's performance are provided on time and to the required quality, and that Autowelt is given all necessary information and results in good time.
The customer is obliged to check the legal admissibility of the commissioned services itself. This applies in particular where Autowelt's services violate competition law, copyright law, trademark law, data protection law or other legal provisions.
The customer is also obliged to ensure that the data, information and files it provides to Autowelt for the contractually agreed services to be provided by Autowelt do not violate statutory provisions and/or third-party rights, and to obtain all necessary approvals, consents and permissions for the commissioned services and for the processing of personal data.
If the customer fails to meet its duties to cooperate after a reasonable deadline has been set, Autowelt is entitled to terminate the contract extraordinarily. In this case Autowelt is entitled to demand the remuneration accrued up to that point. Further claims for damages remain unaffected.
If the customer does not meet, or does not fully and/or correctly meet, its duty to cooperate, Autowelt is entitled to additional remuneration for the extra effort this causes, at the respective agreed hourly rates.
If third parties assert claims against Autowelt under the preceding clauses, Autowelt will inform the customer without delay. The customer undertakes to indemnify Autowelt against any liability towards third parties in this respect, to support Autowelt in its legal defence and to bear the costs of reasonable legal defence, unless Autowelt is partly at fault.

§ 4 Remuneration and termination

The contractually owed services are invoiced at fixed prices or on a time and materials basis, in accordance with the contractual agreement. Unless otherwise agreed, installations are invoiced on a time and materials basis. The amount of the rates results from the contractual agreements.
The remuneration is due for payment upon invoicing. Autowelt issues the invoice by email or by post in accordance with the agreed payment terms. Invoices must be paid within the period stated on the invoice.
Payment of the contract price is due upon acceptance.
The customer is in default if it has not paid within 30 days of the due date.
Travel and accommodation costs are invoiced separately according to actual expense. Travel costs are in particular expenses for meals in the amount of the statutory meal allowance per travel day, flights, overnight stays in at least a 4-star business or city hotel, first-class rail travel, rental cars, taxis, use of a car, car sharing or other transport service providers, parking fees and the like. For trips by car by Autowelt employees, EUR 0.50 per kilometre is to be reimbursed.
If the customer changes, extends and/or cancels orders, work, planning and the like, the contractually agreed remuneration must be adjusted accordingly. In principle, additional services are to be remunerated at the contractually agreed hourly rate.
If the purchase/market price of required materials from the offer on which the contract is based has demonstrably increased by more than 5% at the time of repair compared with the time the offer was prepared, Autowelt is entitled to take this increase into account when invoicing the materials.
Autowelt is entitled to demand instalment payments in the amount of the value of the services already rendered and owed under the contract; unless otherwise agreed, they are due for payment within 14 calendar days of invoicing. If the customer is a consumer, the total amount of the instalment payments may not exceed 90 percent of the agreed total remuneration.
If the customer fails to pay a due instalment despite two reminders, Autowelt is entitled to withdraw from the contract and to invoice the services rendered so far.
Contracts with automatic termination do not require notice and end automatically when the term ends. Where a specific contract term is agreed between the parties, both parties may terminate the contractual relationship at any time in text form with four weeks' notice to the agreed end of the contract, unless otherwise agreed. For contracts for work, the customer has the right to terminate the contractual relationship at any time by notice under § 648 BGB. § 649 BGB does not apply to the contractual relationship.
The right to terminate for good cause remains unaffected. Good cause exists in particular if
a) the customer stops payment and/or
b) the customer is in default of payment of the invoice within the meaning of § 4 no. 4 of these terms and the default already covers two consecutive payment dates and/or
c) the customer has applied for the opening of insolvency proceedings and/or
d) the customer does not meet its duty to cooperate under these terms in good time.
If the customer terminates for good cause without observing a notice period, insofar as this is effective, Autowelt is entitled to demand the remuneration attributable to the part of the work performed up to termination.
If instalment payment is offered, the following applies: an instalment agreement that has been made may be terminated early by early repayment; the customer has the right at any time to pay the full sum (but then the increased instalment amount) in part or in full before the agreed period expires. If the customer fails to pay an instalment after it falls due, after a reminder in text form and after setting a grace period, Autowelt is entitled to end the instalment payment early, and the entire outstanding amount then becomes due immediately.

§ 5 Acceptance

Autowelt will notify the customer of the completion of the services.
The customer is obliged to inspect the services without delay and to notify Autowelt of any defects in text form within 12 working days. Acceptance may not be refused because of insignificant defects.
If the customer does not raise a complaint about defects within the period stated above, the work services are deemed accepted.
If the customer takes the service or part of the service into use, acceptance is deemed to have taken place after six working days from the start of use. Use of parts of a structure for the continuation of the work does not count as acceptance.
Upon request, the condition of parts of the service shall be determined jointly by the customer and Autowelt; this applies in particular where these parts of the service are withdrawn from inspection and determination by further execution of the work, or where the customer refuses acceptance of a service citing defects. If the customer does not cooperate, or does not cooperate to the objectively necessary extent, in a determination of the condition of parts of the service that Autowelt is entitled to request, Autowelt is entitled to carry out the determination of the condition of these parts of the service unilaterally. In case of doubt, this unilateral determination of the condition shall be deemed complete and correct, insofar as the customer is responsible for the missing or insufficient cooperation. The customer reserves the right to prove that the determinations are incomplete and/or incorrect.
Upon acceptance, the risk passes to the customer.

§ 6 Warranty and liability

Autowelt provides its services in accordance with the current state of the art. Technical data, specifications and performance information in public statements, in particular in advertising materials, are not statements of quality and not warranted properties. Any specification is based on the offer and the supplementary agreements made in text form. Instructions for use or processing and assurances of certain properties do not release the customer from carrying out its own suitability tests for the respective application.
If the customer is a business, the warranty is excluded for used items.
For work services, Autowelt assumes liability for defects to the effect that the agreed work services meet the requirements agreed on the basis of the contract and are suitable for the use intended under the contract. The limitation period for work services begins upon acceptance. Claims under § 634 nos. 1, 2 and 4 expire after 5 years for a building and for a work whose result consists in the provision of planning or supervision services for it, and after 2 years (or one year if the customer is a business) for works whose result consists in the manufacture, maintenance or alteration of a thing or in the provision of planning or supervision services for it. The statutory limitation periods are not shortened for consumers.
For sales contracts, Autowelt is generally liable in accordance with the statutory provisions of sales law (§§ 434 ff. BGB) and consumer sales law (§§ 474 ff. BGB). Deviating from § 438 (1) no. 3 BGB, the warranty period for the rights under § 437 no. 1 and no. 3 BGB for new items expires one year after the statutory start of the limitation period, if the customer is a business. The statutory limitation periods are not shortened for consumers.
Liability for defects is excluded for defects caused by external influences for which Autowelt is not responsible, or by improper use by the customer. It also lapses if the customer itself or third parties make changes and/or additions to Autowelt's services without express approval in text form. However, the customer can prove to the contrary that the respective change and/or addition did not cause the defect.
The customer reports defects without delay. The report can initially be made orally, but must be submitted in writing no later than the third working day. A defect report may only be made by a qualified person and must meet the following requirements:
a) precise description of the problem (fault and problematic behaviour)
b) a meaningful contact person for the problem
Before asserting claims for subsequent performance, the customer will check with due care whether there is a defect subject to subsequent performance. If an alleged defect is not subject to the obligation of subsequent performance (apparent defect) or Autowelt incurs increased effort because of an insufficiently specific defect report, a customer who is a business can be charged for Autowelt's services rendered for verification and remedying at its respective applicable rates plus expenses incurred, unless the customer could not have recognised the apparent defect even with due care.
The customer will support Autowelt in identifying and remedying defects and will immediately grant access to the documents that show the detailed circumstances in which the defect occurred.
If the customer is a business, subsequent performance is carried out, at Autowelt's choice, by remedying the defect, by delivering a part or another item that does not have the defect, or by showing ways in which the effects of the defect can be avoided. Corresponding claims for unjust enrichment or damages remain unaffected.
Autowelt may also remedy defects by giving the customer instructions by telephone, in writing or electronically.
The place of performance for subsequent performance is Autowelt's registered office.
If the customer is a business, Autowelt is entitled to at least five attempts at subsequent performance within a reasonable period. The failure of a fifth attempt at subsequent performance does not necessarily mean the final failure of subsequent performance. Rather, Autowelt is entitled to further attempts at subsequent performance within the set deadlines or in view of the circumstances of the individual case.
Autowelt is liable without limitation for damage caused intentionally or through gross negligence, for fraudulent concealment of defects, when giving a quality guarantee, for claims under the Product Liability Act, and for injury to life, body or health.
For other damage, Autowelt is liable only if a duty is breached whose observance is of particular importance for achieving the purpose of the contract (cardinal duty).
In the case of slight negligence, liability is limited in amount to the foreseeable damage that typically has to be expected.
The above liability provisions also apply to Autowelt's vicarious agents.
Otherwise, liability is excluded.

§ 7 Rights of use

Autowelt retains ownership of all documents, cost estimates and drafts, as well as industrial property rights (e.g. patents, trademarks, utility models, design rights) in drafts, samples, inventions or trademarks provided that formed the basis for contract negotiations, until the contract is concluded and paid for in full. If no contract is concluded, the documents must be returned. The customer is not entitled to use the documents in any way other than as necessary to review the offer. In particular, disclosure to third parties is not permitted and gives rise to claims for damages in the amount of notional licence fees.
Autowelt is entitled, to the extent legally permissible and with the customer's consent, to use the customer's name, logo and the type of specific work as a reference after termination of the contract, provided the customer is a business.
Upon full payment as contractually agreed, the customer receives the non-exclusive, unlimited-in-time rights of use to all services provided by Autowelt for the use contractually assumed.

§ 8 Retention of title

Autowelt retains ownership of the respective delivered item until all claims have been paid in full that arose up to the time the contract was concluded, the delivered item was handed over to the customer, or from the entire business relationship between the parties.
As long as ownership has not yet passed to it, the customer is obliged to treat the purchased item with care and to use it to the extent customary in the market. In particular, in the case of delivery of high-value machinery and goods, it is obliged to insure them adequately at its own expense against theft, fire and water damage at replacement value. If care, treatment, maintenance and inspection work has to be carried out, the customer must carry it out in good time at its own expense.
As long as the retention of title exists, the customer may neither pledge the delivered item nor transfer it as security. In the event of seizures in favour of third parties, confiscations or dispositions by third parties, the customer must point out Autowelt's ownership and notify Autowelt without delay. Necessary costs incurred by Autowelt because of an action brought by it under § 771 ZPO (German Code of Civil Procedure) must be borne by the customer within the framework of the statutory cost and fee provisions if reimbursement of costs cannot be obtained from the third party. The same applies to costs of other necessary measures and expenses.
The customer is entitled to sell or process the delivered item in the ordinary course of business even before ownership has passed. In these cases the following applies:

a) In the event of resale, the customer hereby assigns to Autowelt all claims, in the amount of the final invoice total (including VAT), that arise for the customer from the resale against its buyers or against third parties, irrespective of whether the delivered item has been resold without or after processing. In the case of co-ownership by Autowelt, however, the assignment covers only a share of the claim corresponding to Autowelt's co-ownership share. Autowelt undertakes not to disclose the assignment and not to collect the claim itself as long as the customer has not fallen behind with its payment obligations. On this condition the customer remains authorised to collect the claim. The customer is obliged at all times to give Autowelt full information on the claims against third parties arising from the resales.

b) The processing and working of the purchased item by the customer is always carried out in the name and on behalf of Autowelt. In this case Autowelt's expectant right in the purchased item continues in the transformed item. If the purchased item is processed with other items not belonging to Autowelt, Autowelt acquires co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed items at the time of processing. The same applies in the case of commingling. If the commingling takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to Autowelt and holds the resulting sole ownership or co-ownership in safekeeping for Autowelt. To secure Autowelt's claims against the customer, the customer also assigns to Autowelt those claims that arise for it against a third party through the combination of the goods subject to retention of title with a piece of land. Autowelt accepts this assignment now.

§ 9 Force majeure

Autowelt is released from its obligation to perform in cases of force majeure. Force majeure includes all unforeseen events as well as events whose effects on performance of the contract neither party is responsible for. These events include in particular lawful industrial action, also at third-party companies, as well as official measures, epidemics and pandemics.

§ 10 Final provisions

The contract is concluded exclusively in German.
German law applies exclusively to these general terms and conditions and to the contracts concluded with reference to them, unless the customer is a consumer. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
If the parties are merchants, the city in which Autowelt has its registered office is agreed as the place of jurisdiction for all disputes arising from or in connection with this contract.
Should any provision of these terms and conditions be invalid, the remaining provisions remain unaffected.

As of: 19.07.2023

As of: 19 July 2023