General Terms and Conditions of Purchase
1. SCOPE OF APPLICATION
a) Unless the contracting parties have expressly agreed otherwise in writing, these General Terms and Conditions of Purchase shall apply to the delivery of goods to AUDIO MOBIL in legal transactions with companies (hereinafter: Contracting Partner).
b) The Contracting Partner agrees that in the event that they use their own General Terms and Conditions—even if these remain uncontested—the present conditions shall be assumed to apply. Acts of contract performance by AUDIO MOBIL shall not be deemed as consent to contractual conditions that deviate from its own terms.
c) In the case of ongoing business relationships, these conditions shall also apply to future transactions in which they are not expressly referred to, provided they were agreed upon by the contracting parties for a previous order.
d) The following provisions regarding the delivery of goods shall also apply mutatis mutandis to the provision of services.
e) The legal relationship between AUDIO MOBIL and the Contracting Partner is governed by these provisions and any other agreements and contracts. Amendments, collateral agreements, reservations, and supplements require written form to be legally effective. This also applies to an agreement to waive the written form requirement. Other General Terms and Conditions shall not apply even if they are not expressly rejected in individual cases.
2. OFFER AND CONCLUSION OF CONTRACT
a) Offers from the Contracting Partner are free of charge and binding. The Contracting Partner is bound by this offer for 6 months from receipt by AUDIO MOBIL.
b) In the offer, the Contracting Partner shall adhere strictly to our inquiry regarding the quantity and quality of the goods or details of execution.
c) AUDIO MOBIL accepts offers from the Contracting Partner by means of a written order. The written form requirement is also met by electronic data transmission via email or fax. Special agreements, including those with agents or representatives of AUDIO MOBIL, require written confirmation by AUDIO MOBIL to be valid.
d) If the Contracting Partner deviates in any way from the content of the order from AUDIO MOBIL in their order confirmation, this circumstance must be expressly pointed out in writing and the written consent of AUDIO MOBIL must be obtained. AUDIO MOBIL expressly reserves the right to revoke the order if a mutual acceptance of the order is not reached 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 addressed to AUDIO MOBIL, in particular order confirmations, shipping notices, delivery notes, and invoices, the Contracting Partner shall state the order number, the order date, the article number, and all those data from AUDIO MOBIL that were used for the detailed identification of the order. In the case of call-offs, the Contracting Partner shall also note the respective data of the relevant call-offs.
g) Subsequent amendments and supplements to the contract require written confirmation from AUDIO MOBIL to be valid.
3. PRICES
a) The prices stated in the order or agreed with the Contracting Partner are fixed prices. A change in 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 circumstances under tax law or other changes—such as those due to collective agreements, material price increases, etc.—up to the time of delivery do not entitle the Contracting Partner to a subsequent price increase.
c) Unless otherwise agreed in writing, prices apply “delivered at place” (DAP) to AUDIO MOBIL, including packaging, transport insurance, and other costs, excluding value-added tax. If fees, taxes, or other levies are charged in connection with the delivery, these shall be borne by the Contracting Partner.
4. DELIVERY
a) The delivery and call-off dates stated in the order or agreed with the Contracting Partner are binding and—unless a specific delivery date is stated—commence on the date the order is issued.
b) Unless otherwise agreed in writing, delivery to AUDIO MOBIL must be made free of packaging, freight, customs duties, and fees to the place of receipt specified by AUDIO MOBIL. AUDIO MOBIL may refuse to accept shipments that are not prepaid.
c) The receipt of the goods at the AUDIO MOBIL site or at the agreed place of delivery is decisive for compliance with the delivery time. The Contracting Partner is obliged to inform AUDIO MOBIL in writing immediately if circumstances arise or become known to them which indicate that the agreed delivery time cannot be met.
d) AUDIO MOBIL is entitled to demand partial or advance deliveries. Over- or under-deliveries will only be accepted under reservation up to a maximum of 3% of the ordered quantity.
e) In the event of a delay in delivery by the Contracting Partner, AUDIO MOBIL is entitled to demand a no-fault contractual penalty in addition to performance, without proof of damage. This shall amount to 1% of the order value for each week of delay commenced, but no more than 10% of the order value in total. AUDIO MOBIL reserves the right to claim further damages in the event of fault on the part of the Contracting Partner. Otherwise, the statutory conditions shall apply.
f) The goods must be securely packaged and loaded for transport at the expense of the Contracting Partner to protect against loss, damage, or injury to persons, equipment, or other goods. The contractor is liable for all consequences of defective packaging. Items damaged during transport will be returned to the Contracting Partner freight collect. The Contracting Partner is responsible for settling the damage with the forwarding agent or carrier. Packaging will only be returned upon express agreement and at the expense of the Contracting Partner.
g) The occurrence of unforeseeable or unavoidable circumstances or circumstances for which AUDIO MOBIL is not responsible, such as operational disruptions, official 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 scope of their effect. In these cases, claims by the Contracting Partner for consideration and for damages are excluded.
5. TRANSFER OF RISK AND PLACE OF PERFORMANCE
a) The risk shall only pass to AUDIO MOBIL upon arrival of the goods at the receiving point 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 if it is a partial delivery or if the transport is carried out or organized by AUDIO MOBIL.
b) At the choice of AUDIO MOBIL, the place of performance for delivery and fulfillment shall be the registered office of AUDIO MOBIL at 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 the choice of AUDIO MOBIL 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 (declared) company holidays or public holidays, this period and thus the payment deadline shall begin on the first day the company reopens.
b) AUDIO MOBIL only recognizes verifiable invoices! Incoming invoices must comply with all statutory Austrian regulations and taxation regulations and, in particular, with Section 19 (1) sentence 2 of the Austrian VAT Act (UStG).
c) If the Contracting Partner is in default with an agreed performance, AUDIO MOBIL is entitled, without prejudice to its other rights, to suspend its payment obligation until performance by the Contracting Partner. A withdrawal from the contract by AUDIO MOBIL only exists if this is expressly declared in writing.
d) AUDIO MOBIL is entitled to set off its own claims against claims of the Contracting Partner if and to the extent that AUDIO MOBIL notifies the Contracting Partner of this in writing by means of a declaration of set-off within the payment period.
e) The Contracting Partner is only entitled to set off their own claims against the claims of AUDIO MOBIL if and to the extent that these have been recognized by AUDIO MOBIL or established by a final court judgment. The same applies to the Contracting Partner’s right of retention.
f) To secure its claims and to secure claims from other legal transactions, AUDIO MOBIL has the right to withhold payments until all outstanding claims from the business relationship have been settled.
g) AUDIO MOBIL may refuse or withhold its performance until the consideration is provided or secured, even if the claims are not yet due, if the consideration appears to be jeopardized by the poor financial circumstances of the Contracting Partner, or if insolvency proceedings are applied for or opened against the assets of the Contracting Partner. The same applies if the application for insolvency is rejected for lack of assets to cover costs, if the Contracting Partner de facto stops its payments, if the Contracting Partner approaches its creditors for the purpose of concluding an out-of-court settlement, or if execution is unsuccessfully levied against the assets of the Contracting Partner (also by third parties).
7. WARRANTY
a) If AUDIO MOBIL has accepted the goods without reservation, the following agreements shall also apply at the choice of AUDIO MOBIL:
b) The goods or the service provided must have the characteristics promised or required by AUDIO MOBIL, provide the agreed performance, and correspond to the state of the art in its execution. It must not be afflicted with defects that cancel or reduce the value or suitability for ordinary use or the use presupposed or disclosed at the time of the order.
c) The quality, dimensions, and weights of the delivered goods are determined exclusively according to the valid standards. All deliveries and services must comply in full with the statutory accident prevention and safety regulations (CE conformity) applicable at the time of delivery.
d) If the goods lack characteristics promised or required by AUDIO MOBIL, if accident prevention or other safety regulations are not complied with, or if the goods exhibit other defects or errors, AUDIO MOBIL is entitled, at its own choice and regardless of the severity of the defect, to:
- Demand the elimination of the defect through improvement or subsequent delivery of what is missing; or
- Demand the replacement of the defective goods;
- A right to a price reduction; or
- Assert a right of rescission (the termination of the contract without notice).
- This shall not affect any claims by AUDIO MOBIL for damages for defective goods, costs of rectifying defects, as well as indirect or direct consequential damages.
e) If the Contracting Partner does not fulfill its warranty obligation within a reasonable period or if they refuse to do so, AUDIO MOBIL is entitled to rectify the defects itself or through third parties or to procure a replacement elsewhere at the expense of the Contracting Partner. In urgent cases (e.g., in the event of imminent production standstills), AUDIO MOBIL is entitled to rectify the identified defects at the expense of the Contracting Partner without setting a deadline.
f) If defects cannot be rectified on site, transport costs shall be borne by the Contracting Partner.
g) AUDIO MOBIL is entitled to assert notices of defects within 4 weeks after unconditional acceptance, and in the case of hidden defects within 2 weeks from discovery. Hidden defects are also those defects in the goods that are only discovered during their processing or commissioning in the normal course of business.
h) These warranty agreements also apply if the Contracting 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 according to a written acceptance protocol.
i) Exclusions or limitations of liability of the Contracting Partner, in particular under the title of warranty or damages, will not be accepted unless these have been expressly agreed in writing with AUDIO MOBIL. This also applies—but not exclusively—to changes in the statutory burden of proof to the detriment of AUDIO MOBIL, shortening of deadlines, recourse claims according to Section 933b of the Austrian Civil Code (ABGB), or the like.
j) The warranty period is 24 months from unconditional acceptance by AUDIO MOBIL, unless longer statutory periods apply. The Contracting Partner provides a warranty for defects that are present at the time the goods are handed over. This is presumed until proven otherwise if the defect appears 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 Contracting Partner refuses performance or is obviously not in a position to catch up with performance within a reasonable period; or
- If concerns have arisen regarding the solvency of the Contracting Partner and the latter does not provide suitable security at the request of AUDIO MOBIL.
b) In these cases, the Contracting Partner shall compensate AUDIO MOBIL for all resulting disadvantages and lost profits.
c) Unless otherwise agreed in writing, the delivery or service is to be regarded as indivisible. In these cases, AUDIO MOBIL is therefore entitled to a total withdrawal for the above reasons or can assert a partial withdrawal with regard to a part of the delivery or service that is still outstanding.
d) If an application is made for the opening of insolvency proceedings against the assets of the Contracting Partner, the contract shall be automatically dissolved with immediate effect.
9. PROVISION OF TOOLS AND MODELS
a) If the order includes an assumption of tool or model costs, the Contracting Partner hereby transfers ownership of tools and models manufactured or procured by them that have been paid for in full by AUDIO MOBIL. In the case of tools and models partially paid for by AUDIO MOBIL, AUDIO MOBIL acquires co-ownership in the ratio of its respective payment to the value of the item. Tools, models, as well as software, drawings, samples, or similar items provided by AUDIO MOBIL shall in any case remain the property of AUDIO MOBIL.
b) The Contracting Partner undertakes to use tools, models, as well as software, drawings, samples, or similar items paid for in full or predominantly by AUDIO MOBIL or provided 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 Contracting Partner must ensure that the tools and models of AUDIO MOBIL are appropriately co-insured within the scope of their existing insurance policies against fire, storm, burglary, and vandalism damage. The Contracting Partner assigns their claims from this insurance to AUDIO MOBIL, and AUDIO MOBIL accepts this assignment.
d) The Contracting Partner is obliged to carry out all necessary maintenance, inspection, and repair work for these tools and models in a timely manner and free of charge.
10. RETENTION OF TITLE
a) Any extension or prolongation of a retention of title that goes beyond the simple retention of title is not recognized by AUDIO MOBIL.
11. LIABILITY, INDEMNIFICATION, INSURANCE COVERAGE
a) Unless otherwise agreed in writing, AUDIO MOBIL has the right to compensation for all direct or indirect costs incurred due to defective delivery, delay, or other conduct in breach of contract by the Contracting Partner. These include, in particular but not exclusively, damage defense costs, precautionary measures, recall actions, etc. AUDIO MOBIL will inform the Contracting Partner—as far as possible and reasonable—about the content and scope of the recall measures to be carried out and give them the opportunity to comment. If the statement is not made within a reasonable period and no mutual solution is reached, the recall action carried out by AUDIO MOBIL shall be deemed necessary and caused by the defect, unless the Contracting Partner proves the contrary. Further statutory claims remain unaffected.
b) The Contracting Partner shall indemnify AUDIO MOBIL upon first request against claims by third parties and all costs, including the necessary expenses for legal prosecution.
c) At the request of AUDIO MOBIL, the Contracting Partner shall enter into the legal dispute with the third party at their own expense. The Contracting Partner will actively support AUDIO MOBIL at their own expense in all legal disputes related to their deliveries and services, as well as in official orders and investigations, and will provide all witness statements, documents, etc.
d) The Contracting Partner undertakes to maintain a business liability insurance policy with a coverage amount of EUR 10 million flat rate for personal injury and property damage. The coverage must also extend to damage occurring abroad.
e) The Contracting Partner further undertakes to maintain a product recall cost insurance policy, including an extended product recall cost insurance policy, with a coverage amount of at least EUR 10 million. The coverage must also extend to damage occurring abroad.
f) Upon request, the Contracting 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 Contracting Partner warrants that the delivered goods are free from third-party rights.
b) The Contracting Partner shall indemnify AUDIO MOBIL upon first request 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 prosecution, unless the Contracting Partner is not responsible for the infringement.
c) Software, execution 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 that the Contracting Partner accepts together with these conditions.
13. DATA PROTECTION
a) The Contracting Partner shall comply with all applicable data protection regulations, in particular the EU General Data Protection Regulation (GDPR), and shall hold AUDIO MOBIL harmless in this regard.
b) The parties undertake to maintain absolute confidentiality towards third parties regarding the knowledge they have received from the business relationship—even after the end of the business relationship.
14. COMPLIANCE
a) The Contracting Partner undertakes to act responsibly in accordance with the highest ethical standards and to adhere to the principles set out in the Code of Conduct of the AUDIO MOBIL Group (available at www.audio-mobil.com) or to at least equivalent principles. In particular, the Contracting Partner undertakes to introduce or comply with regulations and to take measures that correspond to the standard of this Code of Conduct.
b) AUDIO MOBIL reserves the right to check the Contracting Partner’s compliance with at least equivalent principles and guidelines as set out in the Code of Conduct (in particular regarding the human rights and environmental protection-related provisions contained therein) after reasonable advance notice. The Contracting Partner shall allow AUDIO MOBIL or its representatives to carry out on-site audits at the Contracting Partner’s locations. The audits shall be carried out in close coordination and cooperation with the Contracting Partner and while maintaining any business secrets and the applicable data protection regulations. The Contracting Partner must ensure satisfactory follow-up of the observations made during this audit and take the agreed remedial measures.
c) The Contracting Partner is obliged to make every effort to ensure that its suppliers and service providers also ensure compliance with these principles and introduce corresponding regulations or take measures.
d) A violation of these provisions or the Code of Conduct or a lack of implementation of named measures constitutes a breach of a material contractual obligation of the Contracting Partner. Without prejudice to further rights, AUDIO MOBIL therefore reserves the right, in the event of suspicion or determination of non-compliance, to demand information about the facts and, if necessary, in coordination with the Contracting Partner and granting a reasonable period, to demand corresponding remedial measures. If these are not provided or if the violation is serious, AUDIO MOBIL reserves the right, without prejudice to further rights, to terminate individual or all contractual relationships with the Contracting Partner extraordinarily without notice.
15. CONTRACTUAL PENALTY
a) In the event that the Contracting Partner violates their obligations arising from these conditions, a contractual penalty in the amount of
€ 100,000.— is agreed. Any damage incurred by AUDIO MOBIL exceeding the contractual penalty must also be compensated, whereby in this case full satisfaction must always be provided.
16. GENERAL
a) If individual provisions of the contract or these provisions should be ineffective, the effectiveness of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid one that comes as close as possible to the intended goal.
b) Insofar as the present conditions do not provide for any regulation, the statutory provisions shall apply exclusively.
17. ARBITRATION AND APPLICABLE LAW
a) All disputes arising out of or relating to this contract, including its breach, termination, or invalidity, 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 to be used in the arbitral proceedings shall be German.
b) The contract is subject to Austrian substantive law, excluding 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.
