GUARDIAN AUTOMOTIVE CONDITIONS OF SALES FOR AUTOMOTIVE PRODUCTS
These Conditions of Sales (“Conditions”) govern all sales of automotive products (“goods”) by Guardian Autoglas GmbH and Autoglas Opco BM, S.L. ("Guardian Automotive") to their customers (the "Customer"). The Customer agrees to these Conditions by placing orders with Guardian Automotive. In case of different or supplementary agreements or conflicting conditions, the express written consent of Guardian Automotive is required. Customer’s Conditions are expressly rejected. This also applies if Guardian Automotive in awareness of any conflicting or deviating terms and conditions on the part of Customer fulfills the agreement unconditionally. All orders for deliveries as well as any special conditions of warranties agreed to by Guardian Automotive require a written confirmation by Guardian Automotive. This requirement of form may only be waived by a written agreement.
1. Orders, Delivery and Quantity
1.1. An order placed by Customer is considered an offer to purchase under these Conditions. Guardian Automotive may accept or reject any order. A binding contract will arise only when Guardian Automotive confirms the Customer's order or delivers the goods. Price quotations or other communications of whatsoever nature from Guardian Automotive, do not constitute offers.
1.2. Information about delivery periods is indicative and non-binding unless Guardian Automotive's written confirmation expressly states the contrary. Partial deliveries are permitted. A variation in the quantity delivered amounting to less than 2% of the quantity ordered is acceptable as proper performance, and the Customer will pay for the amount actually delivered.
2. Customer responsibility (Acceptance of goods, Inspections and Claims)
2.1. If the Customer, without being entitled to do so, delays delivery of the goods, or refuses to accept the goods, or a part thereof, or cancels the confirmed order / offers to purchase if Guardian Automotive begins the execution of such order, Guardian Automotive may proceed as follows: (i) Guardian Automotive is entitled (a) to store the goods at the expense and the risk of the Customer and after an initial storage period of at least 1 (one) month, charge the Customer the actual storage cost, and (b) to notify the Customer of a reasonable time period (of at least 15 (fifteen) days) within which the goods must be delivered. After the expiry of this period, Guardian Automotive has the right to dispose of the goods in a different manner and the Customer shall be deemed to have refused to accept the goods and the following Sections 1.3 (ii)-(iii) will apply. (ii) Guardian Automotive may charge 100 % of the confirmed order sum (or invoice sum), reflecting the cost of manufacture, remarketing, or disposal and Guardian Automotive’s loss of profits; (iii) in addition to the above, Guardian Automotive may charge the Customer any reasonable and proven costs above the confirmed order sum (or invoice sum), the transportation costs of goods back to Guardian Automotive's premises if and when applicable.
2.2. The Customer will, without undue delay, check each delivery from Guardian Automotive, and will immediately note any apparent defects on the delivery document. The Customer will then inspect all goods promptly as to possible defects that are not apparent. The Customer must provide specific information on defects within 5 days after discovery, and in any event before the Customer installs or sells the goods. Guardian Automotive cannot be held liable for defects, which are not notified within such periods.
2.3. The installation of the goods by the Customer entails the acceptance by the Customer of the delivered goods in the state in which they were delivered, Guardian Automotive cannot be held liable for any defect after an installation.
2.4. The Customer will retain goods damaged in transit and defective goods for inspection by Guardian Automotive after notifying Guardian Automotive of the damage or defect, and will return such goods to Guardian Automotive at Guardian Automotive's request and expense. Guardian Automotive will have no liability whatsoever for any damage, defect or non-conformity if the relevant goods are not made available for inspection.
3. Payment and Credit; Expenses
Guardian Automotive may assign or subrogate its accounts receivable, and the Customer will pay for all goods on the terms printed on the invoice or other written notification submitted by Guardian Automotive. Guardian Automotive may establish credit terms for the Customer, change those terms, create or change credit limits or cease extending credit from time to time in its sole discretion. If Guardian Automotive accepts checks, bills of exchange or other commercial paper as a means of payment, payment will be deemed to occur only at the time that Guardian Automotive actually receives cleared funds in its bank. The Customer may not make any deduction or set-off from any payment without Guardian Automotive's prior written consent. Customer will pay all costs incurred by Guardian Automotive as a result of Customer’s special requests and any specific additional costs and Guardian Automotive reserves the right to impose extra charges for Customer’s delays in unloading trucks.
4. Late Payments and Cost of Enforcement
If the Customer fails to make a payment when due, this constitutes a fundamental breach of the contract and: (a) all amounts outstanding to Guardian Automotive, including any unearned settlement discounts, will become due immediately; (b) Guardian Automotive has the right to cancel any pending orders; and (c) the amount due will be automatically increased by the rate equal to that rate specified in the applicable legislation, and by all collection costs.
5.1 Guardian Automotive warrants that the goods will be as described on the written order confirmation or on any other communication by Guardian Automotive including the invoice subject to tolerances and variations consistent with usages of the trade and with factory practices concerning dimensions, tolerances and variations consistent with practical testing and inspection methods. For the condition of the goods, the time of delivery in accordance with the applicable INCOTERMS shall be decisive. For specific goods, Guardian Automotive may provide handling and processing instructions.
5.2 Customer must notify any defects in writing immediately after the discovery of such defects. In any case, obvious defects must be reported in writing within five working days of delivery and defects not recognizable during inspections within the same period of time calculated from their discovery. If the Customer fails to properly inspect the goods and/or give notice of the defects, Guardian Automotive's liability for defects which had not or not on time or not properly been reported is excluded.
5.3 Warranty rights for defects shall become time-barred within 12 months following delivery unless statutory provisions provide for a mandatory time period to apply.
6. Limitation of Liability
6.1. Guardian Automotive's sole liability under warranty or contract, or on any other basis, is limited to either replacement of the product or a refund of the purchase price at Guardian Automotive's option.
6.2. Guardian Automotive will not be liable for damages caused to third parties, for any consequential or indirect loss or for labor costs.
6.3 No claim in relation to the goods will be admissible after the use, manipulation, or alteration of the goods by the Customer or any third party. Guardian Automotive shall have no liability for defects of whatsoever nature, resulting from the improper use, installation, processing or treatment of the goods. The Customer shall be liable for any loss resulting from the failure to apply professional standards, customary instructions and product instructions supplied by Guardian Automotive in relation to the goods. 6.4. Limitation of liability does not apply to willful misconduct and gross negligence, damages relating to injury to life, body or health or other mandatory provisions under the law, such as Product Liability Act.
7. Reservation of Title
7.1. Guardian Automotive reserves title to the goods delivered until full payment of the purchase price has been made and until the overall balance in Guardian Automotive's favor - future claims being included - has been cleared (goods subject to retention of title).
7.2. Any modification or processing of the goods subject to retention of title will be made on behalf of Guardian Automotive. Insofar as Customer fulfills its payment obligations to Guardian Automotive, Customer will have the right to resell such goods, however, only subject to retention of title. Other disposals, in particular pledging of the goods or transfer of ownership there to by way of security will not be permitted. Guardian Automotive reserves the right to revoke the authority to resell or to process the delivered goods, if the Customer does not honour its obligations towards Guardian Automotive or if the financial situation of the Customer deteriorates considerably.
7.3 If third parties raise claims to the goods subject to retention of title, Customer will identify these goods as Guardian Automotive's property and notify Guardian Automotive without delay.
7.4 Customer now assigns to Guardian Automotive by way of security (a) all claims and ancillary rights that may arise from reselling the goods subject to retention of title or (b) from the Customer's business relationship with its customers in connection with the reselling of the goods subject to retention of title, each up to the amount of the value of these goods. Customer will be authorized and under the obligation to collect the assigned claims. Customer will be under the obligation to give Guardian all information required for the recovery of the claims and to hand over the relevant documents.
7.5 If Customer makes default in payment, Guardian Automotive shall further have the right to repossess the goods by marking them accordingly and, for this purpose, to have access to the Customer's premises. Guardian Automotive shall have the right to liquidate the repossessed goods plus accessories by way of free sale. Guardian Automotive shall not, upon liquidation of the delivered goods, waive its other claims against the Customer.
8.1 To the extent that any provision or a portion of any provision of these Conditions is determined to be illegal or unenforceable, the remainder of these Conditions will remain in full force and effect. The same applies in case of a gap.
8.2. Special services or goods, such as transformation by Guardian Automotive of glass provided by the Customer, will be subject to additional terms and conditions established by Guardian Automotive for the particular operation.
8.3. These Conditions are governed by the law of the residence country of the Customer and the courts of this country shall have exclusive jurisdiction to resolve any dispute. The application of the United Nations Convention on Contracts for the International Sale of goods of 11 April 1980 is expressly excluded.
(Version Oct. 2019)