I. General, conclusion of contract, content of contract
1. The contractor (usually "AN") only delivers according to the following general terms and conditions, even if reference is no longer expressly made in the case of permanent business relationships.
2. Deviating terms and conditions of the client (usually "AG"), which the AN does not expressly recognize in writing, are non-binding for him, even if he does not expressly contradict the AG. Silence on the order confirmation, which refers to different terms and conditions, is not to be regarded as consent. By accepting our delivery, the customer irrevocably agrees to the exclusive validity of our general terms and conditions.
3. All offers submitted by the Contractor are subject to change. Orders are only considered accepted when we have confirmed them in writing.
4. The contract is concluded with inclusion of these terms and conditions with the written (§ 126 BGB) or textual (§126 b BGB) order confirmation of the contractor.
5. The documents belonging to the offer such as illustrations, drawings, weight and dimensions, power consumption and performance details are only approximate unless they are expressly designated as binding. The AN reserves ownership and copyright to cost estimates, drawings and other documents. They may not be made accessible to third parties. The Contractor undertakes to make plans designated by the Client as confidential only available to third parties with his consent.
6. Design and manufacturing technology as well as changes to the delivery item due to legal regulations are reserved, insofar as the delivery item is changed only insignificantly and the changes are reasonable for the AG. The AN will notify the AG of such changes as early as possible.
7. The Contractor reserves the right to make modifications to the subject matter of the contract, to the extent that they are technically equivalent or represent a technical improvement. However, the Contractor undertakes to inform the Client of this.
8. If the delivery item is subject to special regulations in countries outside the Federal Republic of Germany, the AG is responsible for its observance and is obliged to inform the Contractor. If the contractor has changed the intended type of execution, he must inform the client immediately.
II. Prices and payment
1. In the absence of a special agreement, the agreed prices apply ex works including loading in the factory, but excluding packaging and unloading. They are net plus the applicable sales tax.
2. Unless otherwise agreed in writing, the payments are to be made by the client without any deduction á account:
- 30% after conclusion of the contract
- 60% after acceptance in the factory before delivery
- 10% after final acceptance
No. III.4 applies accordingly
3. The purchaser is only entitled to withhold payments or to offset them with counterclaims insofar as his counterclaims are undisputed or have been legally established.
4. If the terms of payment are not complied with or if circumstances arise that are likely to reduce the creditworthiness of the AG, the Contractor has an immediate right of termination. In this case, he has the right to request cash payment against return of the bills regardless of the duration of the bills accepted. Such circumstances also entitle the Contractor to only perform outstanding services against advance payment or security.
5. If payment deadlines are exceeded, the Contractor is entitled to charge statutory default interest among non-consumers. The contractor reserves the right to prove higher damage caused by delay.
III. Delivery time, delivery delays
1. The delivery time results from the agreements of the contracting parties and begins at the earliest with the receipt of the order confirmation. Your compliance by the contractor presupposes that all commercial and technical questions between the contracting parties have been clarified and that the contractor has all its obligations, such as: B. Provides proof of the required official certificates or has paid permits and all due claims of the Contractor. If this is not the case, the delivery time will be extended accordingly. The same applies if unforeseen obstacles occur which the Contractor could not avert despite reasonable care, e.g. B. Breakdowns, strikes, lockouts, lack of energy and raw materials as well as other events of force majeure, also with suppliers of the contractor. This does not apply if the contractor is responsible for the delay.
2. To the extent that as a result of the 1 mentioned circumstances, the fulfillment of the contract for the contractor is impossible or economically no longer reasonable, he can withdraw in whole or in part from the contract. If the contractor's withdrawal is based on this, the client has no claims for damages. If the contractor wishes to exercise the right of withdrawal, he must inform the client immediately after becoming aware of the circumstances justifying the withdrawal. If the impossibility or inability occurs during the delay in acceptance or if the AG is solely or largely responsible for these circumstances, he remains obliged to provide the consideration.
3. Compliance with the delivery deadline is subject to correct and timely self-delivery. The Contractor shall notify as soon as possible of any emerging delays.
4. The delivery deadline is met if the delivery item has left the AN's works by the end of the delivery or if the goods are ready for dispatch. Insofar as an acceptance has to be carried out, the acceptance date is decisive - in the case of justified refusal to accept the goods, alternatively the notification of readiness for acceptance. This regulation applies to no. II.2. corresponding.5. If the shipment or the acceptance of the delivery item is delayed for reasons for which the AG is responsible, he will be charged the costs incurred due to the delay, starting one month after notification of readiness for dispatch or acceptance. In the case of storage in its own plant, the Contractor can charge at least 0.5% of the contract price of the stored delivery parts per month.
6. Earthwork and masonry work, lifting fences, scaffolding, roof storage, material and installation work as well as other work required for the installation of the contractual object from the respective connections of the contractual object are not covered by the contractor's delivery obligation.
7. If the Contractor does not meet an agreed delivery date, the Client can set the Contractor a reasonable grace period and is entitled to withdraw from the contract after its fruitless expiry.
IV. Transfer of risk, acceptance
1. The risk passes to the AG if the delivery item has left the factory, even if partial deliveries have been made or the AN has other services, e.g. B. has taken over the shipping costs or delivery and installation. If an acceptance has to take place, this is decisive for the transfer of risk. It must be carried out immediately on the admission date, alternatively after the contractor has reported that he is ready for acceptance. The AG may not refuse acceptance if there is an insignificant defect.
2. If the delivery or the acceptance is delayed or does not take place as a result of circumstances that are not attributable to the Contractor, the risk passes to the Customer from the day the delivery is notified or readiness for acceptance. The Contractor undertakes to take out the insurance that the Client requires at the Client's expense.
3. Partial deliveries are permitted, as far as reasonable for the AG.V. Retention of title
1. The Contractor reserves ownership of the delivery item until all payments from the delivery contract have been received.
2. The Contractor is entitled to insure the delivery item against theft, breakage, fire, water and other damage without the consent of the Client, unless the Client has demonstrably taken out the insurance himself.
3. The AG may not sell, pledge or assign the delivery item as security. In the event of seizures, confiscation or other dispositions by third parties, the contractor must be informed immediately. If the client fails to do this, he is liable to the contractor for the resulting damage.
4. If the orderer behaves contrary to the contract, in particular in the event of late payment, the contractor is entitled to take back the delivery item after a reminder and the orderer is obliged to surrender it.
5. Due to the retention of title, the contractor can only demand the delivery item if he has withdrawn from the contract.
6. The application to open insolvency proceedings entitles the Contractor to withdraw from the contract and to demand the immediate return of the delivery item.
VI. Warranty and notice of defects
1. To protect its rights, the AG must carefully check the delivery item immediately upon receipt and, if recognizable, notify the Contractor in writing or in writing of any defects immediately.
2. The Contractor is liable for defects in the delivery, excluding further claims, as follows:
3. If there is a defect in the delivery item, the Contractor is entitled to choose whether to remedy the defect or to deliver a new delivery item. In the event of rectification of defects, the Contractor bears the costs only to the extent that these do not increase because the object of purchase was moved to a location other than the place of performance and up to the amount of the purchase price. Replaced parts remain or become the property of the supplier. For essential third-party products, the contractor's liability is initially limited to the assignment of liability claims against the supplier of the third-party product. If the assigned claims cannot be enforced against the third party, the contractor is liable in accordance with these conditions.
4. If the subsequent performance fails, the AG is entitled to request withdrawal or a reduction.
5. Claims by the client that go beyond the statutory provisions are excluded. This exclusion of liability does not apply in the event of intent or gross negligence on the part of the contractor or one of his vicarious agents.
6. Claims for defects do not arise if the error is due to the violation of operating, maintenance and installation instructions, unsuitable or improper use, unsuitable equipment, unsuitable surface, faulty or negligent handling, unnatural wear and tear, as well as interventions in the delivery item by the AG or third parties.
7. AKE is liable for intent and gross negligence, in cases of product liability and according to the BDSG, in the absence of a guaranteed property, for malice, for defects of title and for personal injury in accordance with the statutory provisions.
8. In the event of simple negligence in the violation of cardinal obligations, liability is limited to damage that is predictable or typical. In addition, the contractor is only liable for simple negligence to a maximum of 15% of the total remuneration agreed for all services based on the respective contract (for recurring remuneration with respect to the respective calendar year), for all liability cases occurring in a calendar year, regardless of the legal reason. Liability for lost profits and indirect damage is excluded.
9. AKE is not liable for the retrieval of data, unless AKE caused their destruction through gross negligence or intentionally and the buyer has ensured that this data can be reconstructed from data material that is available in machine-readable form with reasonable effort.
10. Insofar as claims for damages against AKE's agents or vicarious agents exist, they expire within one year.
Otherwise, the statutory provisions apply.
VII. Place of performance, jurisdiction and choice of law
1. For all legal relationships between the contracting parties, the law of the Federal Republic of Germany, which is decisive for the legal relationships between domestic parties, applies exclusively. The UN sales law is excluded.
2. All claims of the AG - for whatever legal reasons and to the extent permitted by law - expire in 12 months.
3. The place of jurisdiction is the court responsible for the seat of the AN. However, the Contractor is entitled to file suit at the AG's headquarters.