STANDARD TERMS AND CONDITIONS OF BUSINESS (STCB)
Terms and Conditions of Sale – Effective as of 01/08/2022
| I. | Scope of Application |
|---|---|
| 1. | the Seller, Auto Export Corporation (AEC), 25 Corporate Park Dr. Suite 302, St. Catharines (Ontario), L2S 3WS Canada (hereinafter referred to as “AEC” or “Seller”), is an authorized distributor in selected countries and areas for certain motor vehicles or batches of motor vehicles (hereinafter referred to as the “Goods”) of the brands “Dodge” and “RAM” (hereafter referred to as “Dodge/Ram”) or “Chevrolet”, “GMC”, “Cadillac” (hereafter referred to as “GM brands”) as well as accessories and replacement parts to the Buyer. Furthermore the Seller is also an independent importer for other vehicle brands (hereafter referred to as “Independent Imports”). A Buyer within the meaning of these terms and conditions is a dealer who then resells the Goods. |
| 2. | For the purpose of these Terms and Conditions of Sale and Delivery, AEC Europe GmbH (hereinafter referred to as “AEC Europe”), the wholly owned subsidiary of AEC, functions purely as a Broker between the Buyer and the Seller. No business relationships are created between the Buyer and AEC Europe. No claims may be made against or liability of any kind imposed on AEC Europe. |
| 3. | All sales and deliveries made by the Seller of the Goods set out in Section I. (1) to the Buyers referred to there are governed by these Terms and Conditions of Sale and Delivery. If the Buyer has also concluded an Authorized Reseller Agreement as a framework contract with AEC, these Terms and Conditions only apply for the respective sale contract, under which the goods are delivered; for the rest the regulations of the Authorized Reseller Agreement shall apply. In the event of any conflict, the provisions of the Authorized Reseller Agreement prevail over these Terms and Conditions. |
| 4. | These terms and conditions also apply by analogy to all accessories and replacement parts. Any conflicting and/or supplementary terms and conditions of the Buyer (whether written or verbal) will not apply to the Seller. The same applies even if the Seller does not expressly object to such terms and conditions or if it fulfils its contractual obligations without reservations. |
| 5. | Unless reference is made to a specific type of good, the generic term “Goods” comprises the following types of goods: a. Warehouse Supplies. Warehouse Supplies are goods that the Seller has on stock in its bonded warehouses. b. Confirmed Goods. Confirmed Goods are goods that have already confirmed as being in production with an expected delivery date to the port or that are already in storage at port. c. Factory Orders. Factory Orders are goods ordered by the Seller from at the special request of the Buyer. the Seller accepts Factory Orders on condition that the goods are available or that they will become available. |
| II. | Conclusion of the Contract and Contents of the Contract/Transfer of the Buyer’s Rights and Obligations |
| 1. | The Buyer’s offer to purchase is binding as soon as the order form completed by the Seller at the Buyer’s request has been signed by the Buyer and received by the Seller. The Buyer is bound by its offer for a period of ten days. the Seller must provide the Buyer with written confirmation of its acceptance of the offer within this time period. Otherwise, the offer is deemed to have been refused by the Seller. |
| 2. | Statements made to third parties that were not made by the Seller, by the manufacturer of the delivered Goods, or by their agents, especially in advertising, do not constitute either a description of the quality/properties of the Goods or a guarantee in respect thereof. |
| 3. | Any assignments of the Buyer’s rights and obligations pursuant to the sale contract must be approved in writing by the Seller. Consent by the Seller will not release the Buyer from its contractual obligations. |
| III. | Price |
| 1. | Unless otherwise agreed on the order form, prices are deemed to be EXW “Ex-works” any European port as per INCOTERMS 2020.The transfer from the European port to the Buyer’s place of business by multi-vehicle transport truck is offered as an optional service (see Section V. (3)). In this case, a transport contract between the Buyer and the transportation company is deemed to have been concluded through the brokerage of Seller or its agent. The Buyer is responsible for the transport, including transportation insurance. Seller shall have no liability in this event. |
| 2. | The Buyer shall be solely liable for all taxes properly owed to the tax authorities. |
| IV. | Payment |
| 1. | In the absence of an agreement to the contrary between the parties, the purchase price is due after an invoice is sent and upon arrival of the Goods at the Port. In the case of Warehouse Supplies, the invoice will be sent after receipt of the signed binding order; in all other cases, it will be sent a few days prior to the arrival of the Goods at the Port, in which case the anticipated arrival time will be stated on the invoice form. |
| 2. | If the Buyer fails to pay the invoice within a period of ten calendar days from the due date, then the Buyer is in default. |
| 3. | A default in payment by the Buyer entitles the Seller to rescind the respective sale contract after it has provided the Buyer with a reasonable deadline for payment. If the Seller also has a claim to damages in lieu of performance and the Seller takes back the Goods, then the Seller and the Buyer agree that the Seller will refund the standard selling price of the Goods at the time they are taken back The Buyer must pay all of the costs of recovery and disposal of the Goods. The costs of disposing of the Goods shall be fixed at the rate of 5% of the standard selling price. This rate will be increased or decreased if the Seller proves that the costs are higher or the Buyer proves that the costs are lower or that no costs were incurred at all. |
| 4. | If the Buyer fails to fulfil its payment obligations, then the Seller is entitled to refuse performance of the contract in whole or in part until the amounts due have been paid or security has been provided. |
| 5. | Payment may only be made in advance by way of a bank transfer. The Goods will be released to the Buyer after payment in full has been deposited in the bank account specified by the Seller. |
| 6. | Payment may be made in Swedish krona, Polish Zloty, Pound sterling, US dollars or Euros. The Buyer declares its consent to having an exchange-rate hedging contract concluded on its behalf with the bank commissioned by the Seller. In this event the Buyer will receive an invoice in Euros which must be paid no later than the expiry date stipulated in the exchange-rate hedging contract. |
| 7. | The Buyer may only offset claims of the Seller if the Buyer’s counterclaim is undisputed or if a judicially enforceable final judgment exists; the Buyer may only assert a right of retention if it is based on a claim arising from the sale contract. |
| V. | Delivery, Place of Performance, and Delayed Delivery |
| 1. | Unless otherwise agreed, delivery or place of performance means that Seller must provide the Goods to the Buyer in the designated Port within the agreed time period and without having to load the Goods for the Buyer at the Port of delivery. |
| 2. | If the Buyer requests the transfer of the Goods from the Port to its place of business, then the Buyer will bear all risks of transit from the Port. Seller hereby expressly advises the Buyer of the need to obtain transportation insurance. Prior to delivery to the transport company, the Goods must be inspected by the transport company or by another service provider for any already existing transport damage and an inspection report must be made in this regard. If Goods that were undamaged at the time the inspection report was made reach the Buyer in a damaged condition, then the Buyer’s cause of action in relation to such transport damage is against the transport company only. All transport damages have to be reported within 24 hours from delivery. Such transport damage does not constitute a material defect of warranted quality within the meaning of Section 434 of the German Civil Code (BGB) or within the meaning of Section VIII. (Warranty and Guarantee). The foregoing shall not preclude the Buyer from proving that the damage already existed prior to the passing of risk. |
| 3. | Time limits, especially delivery deadlines quoted by the Seller, are not binding. Non-binding delivery deadlines begin to run when the respective sale contract is concluded. In particular, the Seller has no obligation whatsoever to comply with agreed delivery deadlines in cases where final product specifications and papers requested from the Buyer that are required for finishing, dispatching, or delivering the Goods are not received until after the respective sale contract has been concluded. |
| 4. | Where delivery is delayed for reasons not attributable to the Seller, delivery deadlines shall be extended by the length of time that performance is impaired on account of such delay. This applies in particular to cases of force majeure, disruptions in the power supply or the traffic system, embargos, operational breakdowns, labour disputes, or late receipt by the Seller or the complete non-delivery of its own supplies from its suppliers (. If such disruptions cause performance to be delayed by more than four months, then the Buyer is entitled to rescind the respective sale contract. The foregoing shall not affect any other rights of rescission. If it is impossible for the Seller to fulfil the respective sale contract for the reasons stated, then the relevant order is deemed cancelled. the Seller must inform the Buyer without undue delay of any such delays in making delivery. |
| 5. | If the Seller exceeds (non-binding) delivery times–and this is not a matter which falls under Section V. (4)–, then the Buyer may only assert its legal rights if it has granted the Seller a reasonable extension of time for performance and this has expired. A reasonable extension of time for delivery of a. Warehouse Supplies is a minimum of two weeks; b. Confirmed Goods is a minimum of three weeks; c. Factory Orders is a minimum of four weeks. |
| 6. | If, in the case of Factory Orders, the Goods are not available or if changes must be made to the original order, the Seller must promptly inform the Buyer of the changed conditions no later than five work days from the time it was informed of this by their supplier. The Buyer has the option to either rescind the respective sale contract within five work days after being informed by the Seller or to adhere to the respective sale contract by accepting the changed conditions. |
| 7. | the Seller is entitled to make partial deliveries to a reasonable extent. |
| VI. | Acceptance of Delivery |
| 1. | The Buyer is obligated to accept delivery of the Goods no later than 14 calendar days from receipt of notification of their arrival at Port or the date of availability of the Goods for loading by the transport company hired by the Buyer. In the event of a failure to accept delivery, the Seller may exercise its legal rights, in particular, the right to rescind the respective sale contract and to sell the Goods to another party. If the Buyer fails to pay the full purchase price, this is equivalent to a failure to accept delivery. |
| 2. | If the Seller claims damages, then these will amount to 10% of the agreed gross purchase price. The amount of the damages will be increased or decreased accordingly if the Seller proves that the loss is higher or the Buyer proves that it is lower. |
| VII. | Retention of Title |
| 1. | Unless otherwise agreed, the Seller shall retain title to the Goods until satisfaction of all claims owed to the Seller pursuant to the respective sale contract. For the duration of the retention of title, the Seller shall be entitled to possession of the vehicle registration document. |
| 2. | As long as the retention of title applies, the Buyer may not dispose of the Goods, nor sell, pledge, or grant third parties contractual rights of use. |
| VIII. | Warranty and Guarantee |
| 1. | If the delivered Goods have a material defect of warranted quality, then the Seller, at its option, must either repair the defect or deliver other Goods that are defect-free (cure the defect). If the repair proves ineffective or if it is unreasonable to expect the Buyer to accept the repair, then the Buyer may reduce the purchase price or rescind the respective sale contract. In such event, the Buyer shall have no further claims other than as set out in Section IX. (Liability). |
| 2. | The Buyer hereby undertakes to pay a maximum amount of 250.00 Euros towards the costs of repairing a material defect of warranted quality. |
| 3. | Any claims of the Buyer based on material defects of warranted quality will expire one year from the date the Goods are delivered. |
| 4. | Subject to the provisions of V. (2) above and the inspection report provided at the time of delivery, the Buyer must examine the Goods without undue delay, no later than five calendar days from receipt, for any material defects of warranted quality, in particular, as to completeness and conformity with the respective sale contract, and must notify the Seller in writing or in text form of any such defect without undue delay, no later than five calendar days from discovery of the defect. A delivery will be deemed incomplete within the meaning of this provision in particular when interior components and accessories are missing. In the event the Buyer should fail to provide notification, the Goods will be deemed to be accepted and defect-free unless the defect was not apparent on examination. The foregoing shall not affect Article 377 of the German Commercial Code (HGB). |
| 5. | The warranty does not cover damage or malfunctions caused by improper handling, overstressing, or natural wear and tear. The same applies for transport damage that occurs after the passing of risk as per Section V. (4) sentences 3 and 4 (Delivery and Delayed Delivery). |
| 6. | The warranty lapses if the Goods are repaired or modified by a third party without the prior consent of the Seller or by a repair shop/garage not authorized by the Seller unless it is proven that the repair or the modification was not the cause of the claimed defect. |
| 7. | If the contractual documents contain a contract of guarantee for the Goods (i.e. the motor vehicle), the Buyer undertakes to activate the contract of guarantee within 10 days after the first registration and by providing the full details of the vehicle model, special features, and other specifications. Without the timely activation, no valid guarantee contract is concluded (suspensory condition) and the Buyer is not entitled to any claims and rights under the guarantee. After activation, the Buyer is obliged to assign all claims and rights to his Buyer or the end customer according to the guarantee conditions. |
| 8. | If a contract of guarantee is not included in the contractual documents, then the Seller recommends that a product guarantee be obtained for the Goods (i.e. the motor vehicle) on the secondary insurance market. As an obligation towards the Seller the Buyer undertakes to notify its Buyers or end customers that, the Goods (i.e. the motor vehicle) in contrast to the practices of many other manufacturers, do not come with a voluntary new vehicle warranty of the manufacturer (and that such a warranty agreement should therefore be concluded separately. The Buyer undertakes to obtain from its Buyer or end customer a written or text-form confirmation that the Buyer has fulfilled the aforementioned duty to inform. |
| IX. | Liability |
| 1. | the Seller is only liable in damages if a. the liability is mandatory pursuant to applicable law, for example pursuant to the German Product Liability Act (ProdHaftG) or in cases of loss ensuing from a fatal injury, a bodily injury, or an injury to a person’s health, if the Seller negligently breaches a fundamental contractual obligation (obligations whose performance is necessary for the contractual purpose to be achieved) or a guarantee, or if b. the loss is caused by the rossly negligent or intentional conduct of the Seller. |
| 2. | In all other cases, liability for damages by the Seller is excluded regardless of the legal basis for it. In particular, the Seller is not liable for indirect loss, lost profits, or any other pecuniary loss of the Buyer. |
| 3. | Liability is limited in any case to the loss that the Seller could reasonably have foreseen or should have foreseen at the time the respective sale contract was concluded based on the circumstances and facts available to the Seller. This limitation of liability does not apply to the cases set out in Section IX. (1) a). |
| 4. | The exclusion of liability and the limitation of liability pursuant to the foregoing subparagraphs also applies to the personal liability of the employees of the Seller and its agents. |
| X. | AEC Dealers |
| 1. | The mere fact that the Buyer carries on a business relationship with AEC does not entitle the Buyer to call itself an AEC Dealer. Inclusion in the AEC network is effected per separate Authorized Reseller Agreement and fulfilment of all corresponding requirements. |
| XI. | Trade Mark Rights and Logos |
| 1. | The trademarks and logos of the Dodge/Ram brands or GM brands or any other brand that are associated with these Terms and Conditions of Sale and Delivery are and remain the property the respective “brands” or “import brands”. The Buyer hereby expressly agrees to refrain from any form of unauthorized use. |
| 2. | All trademarks and logos of the Seller and its subsidiaries, in particular, AEC Europe GmbH, are and remain the property of the Seller. The use of these trademarks and logos requires the express approval of the Seller. |
| XII. | Energy Efficiency |
| 1. | The Buyer has to respect all applicable laws and regulations concerning the information of the customer. |
| 2. | If the Buyer sells the Goods within the territory of the Federal Republic of Germany, the Seller hereby expressly puts the Buyer on notice of the obligations owed by the Buyer to its (end) customers pursuant to the German Passenger Car Fuel Consumption and CO2 Emissions Information Regulation (Pkw-EnVKV) (e.g. displaying on the vehicle, advertising). the Seller assumes no liability for any written warnings issued to the Buyer. The Buyer releases the Seller from any liability whatsoever in this regard. In particular, the Seller shall not be liable for any written warnings issued in connection with the passing on of dealer material prepared by the Seller for internal purposes, for example internal dealer brochures, to the (end) customers of the Buyer. In this regard, the Seller hereby provides express notice that the Buyer is not authorized to pass on to its (end) customers material that is designated as internal material. the Seller recommends that the Buyer inform itself about its obligations under the Pkw-EnVKV. |
| XIII. | Restrictions on Re-Sale and Obligation to Disclose Customer Information |
| 1. | The following paragraphs (2.), (3.) and (4.) only apply if the Buyer has not concluded an Authorized Reseller Agreement as a framework contract with the Seller for any of the Goods. |
| 2. | |
| 3. | The Buyer acknowledges that the Goods are offered for sale by the Seller subject to the condition that their resale is limited depending on the brands as follows and will not occur anywhere else, and the Buyer covenants and agrees to comply with this limitation:
Dodge/Ram: within the European Union or the European Free Trade Association (excluding Iceland). GM Brands: within the European Union, the European Free Trade Association plus Iceland, Turkey, Ukraine, Mezodonia, Montenegro, Bosnia Herzegovina and Albania. Other brands: No brand specific limitations |
| 4. | Notwithstanding XIII (2) above, the resale of Goods to blacklisted nations according to latest FATF (Financial Action Task Force) decision (see: high-risk and other monitored jurisdictions upon FATF) is strictly prohibited. |
| 5. | On the re-sale of the Goods by the Buyer, the Buyer shall, within thirty (30) days of said re-sale, provide a written report (or a copy of its re-sale contract) which will identify: a) the vehicle in question by year, model and VIN identification; b) the name and address of the purchaser on said re-sale; c) whether the sale is made to the purchaser as a user of the vehicle or as a re-seller; d) if the sale to the new purchaser is as a re-seller, then a copy of the covenant by the new purchaser to abide with the territorial restrictions set out in XIII. 1. |
| XIV. | Mediation |
| 1. | In the event of differences of opinion in connection with the implementation of this contract, the contracting parties undertake to first try and settle their differences of opinion by way of mediation proceedings. |
| 2. | Once a contracting party has requested mediation, then the parties undertake to agree on a mediator within eight work days. If it proves impossible to reach agreement, then the parties must accept a business mediator recommended by an accredited institution (e.g. a German Chamber of Industry and Commerce). |
| 3. | The place of the proceedings is Munich, Germany. |
| 4. | The parties must each pay half of the costs of the mediation unless they agree to another apportionment in the mediation. |
| 5. | If the parties are unable to reach an agreement in the mediation proceedings within six months, then each party is entitled at the end of the mediation proceedings to commence legal proceedings in an ordinary court of law. |
| XV. | Place of Judicial Jurisdiction and Applicable Law |
| 1. | The exclusive place of judicial jurisdiction for all present and future claims arising from or in connection with the business relationship is Munich, Germany. |
| 2. | The law of the Federal Republic of Germany applies. The UN Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply. |
| XVI. | Severability Clause |
| 1. | Should any individual provision of these Standard Terms and Conditions of Business (STCB) be or become invalid or unenforceable after the respective sale contract has been concluded, then this shall not affect the validity of the remaining provisions of the respective sale contract or of these STCBs. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that, in its effect, comes as close as possible to the commercial goal that the contracting parties wished to achieve with the invalid or unenforceable provision. The foregoing provisions shall also apply in the event these STCB contain an omission. |
| XVII. | General |
| 1. | Any modification of these STCBs must be in written form. The modification or cancellation of this requirement for written form must also be in written form. The foregoing shall not affect Section 305b of German Civil Code (BGB). |
| 2. | If the Buyer has several different versions of these Terms and Conditions of Sale and Delivery, then the latest version in effect at the time the respective sale contract was concluded or at the time the respective order was confirmed applies. The current version in effect at any given time is available, on AEC’s website (aecsolutions.com) and elsewhere. |