General Terms and Conditions (GTCs) for AKK GmbH
§ 1 Area of Applicability
1. Validity of the Terms and Conditions
Our deliveries, services and offers shall be exclusively based upon these terms and conditions. Moreover, these shall apply to all ensuing business relations, even if they are not expressly agreed upon again. Any counter-confirmations on the part of the customer with reference to this terms and conditions of business and purchase are hereby contradicted. Neither our silence nor our performance shall be deemed to imply consent that these shall be integrated into the contract.
2. Offers, order confirmations and quality specification
2.1 All of our offers are subject to change and without obligation, unless they are otherwise expressly agreed upon. All orders shall require our written confirmation in order to be legally valid. This also applies to amendments, modifications or collateral agreements as well as collateral agreements or warranties by our employees and representatives. The scope of supply or performance shall be exclusively determined by our written order confirmation.
2.2 Drawings, illustrations, measurements, weight or other performance data are approximate values in the industry and are therefore only binding if this is expressly agreed upon in writing. This also applies to features that the customer expects and which are derived from our public statements, in particular those that are a consequence of advertising, marking or custom in trade. These features shall only be part of the agreed quality, insofar they are expressly agreed upon in writing. This shall also apply to guarantees. We reserve the right to make changes to the construction and shape during the delivery period, in particular those which are attributable to the improvement of the technology or to the requirements of the legislator, provided that the goods are not significantly modified or the suitability of the ordered goods for the contractually agreed upon requirement or customary use is impaired.
Our prices are in Euro and are net prices plus the respective statutory value-added tax ex works including loading, however, this does not include packaging, unloading and assembly. If the assembly has been agreed upon with the customer, the latter shall bear the additional costs incurred. The extent of these costs shall be determined in accordance with section 14.5 of these Terms and Conditions, unless otherwise agreed upon.
4. Terms of payment
4.1 If nothing to the contrary has been agreed upon, the following shall be paid for the delivery of a machine: 4.1.1 30% shall be due upon receipt of order confirmation, 4.1.2 60% shall be due following acceptance of the machine in the factory, but no later than eight days after receipt of the request of acceptance or at the latest 30 days after delivery. 4.1.3 10% following receipt of notification of readiness to deliver. 4.2 Our invoices shall be due immediately and the net payment shall be made within 10 days from the date of the invoice, unless otherwise agreed upon. Punctual settlement depends on the date of payment being received. All settlements shall only be made to the accounts indicated in the invoices. 4.3 If the customer falls into arrears with a settlement, we shall be entitled to charge interest at a rate of 8% above the respective base interest rate, however, at least 10%. If the interest rate that has been determined exceeds the statutory interest rate, the customer shall be entitled to prove that no damage, which exceeds the statutory interest rate, has arisen with our company. It is also permissible for us to prove that higher damages were incurred. 4.4 Any rights of retention on the part of the customer are excluded, unless they are based on the same contractual relationship. The customer shall only be permitted to offset claims if the counterclaim is uncontested or legally established. The customer shall only be entitled to any other sureties, if these have been agreed upon. 4.5 In order to secure our payment requirements, we are entitled at any time to demand appropriate payment security (e.g. bank guarantees) from the customer. Should the customer be in default with the provision of the required security, we are entitled to withdraw from the contract and/or demand compensation for non-performance.
5. Period of Delivery and Performance
5.1 The delivery dates and delivery times stated by us are non-binding, unless otherwise stipulated. Compliance with the agreed delivery and performance periods requires the timely and proper fulfillment of the obligations of the customer, in particular, the provision of all the necessary payment securities, which have been agreed upon. Under no circumstances shall the commencement of an agreed delivery or performance period begin before the confirmation of order, unless this has been expressly agreed. 5.2 We shall be in default of delivery, if we receive a written request from the customer, which may take place at the earliest six weeks after the expiry of the delivery period, provided that no binding delivery periods have been agreed upon. In the event of a minor case of negligence causing a delay in delivery, the default compensation shall be 0.5% for each complete week of delay, but up to a maximum of 5% of the net order value of the delivery and service that has been affected by the delay. This provision pertaining to compensation for delay shall also apply insofar as we are responsible for the non-compliance of bindingly agreed upon deadlines and appointments. A prerequisite for a compensation for delay shall always be that the customer has incurred damage through delayed performance up to the amount of the maximum amounts. Any further claims are excluded. 5.4 In the event of inculpable delays in delivery and performance due to force majeure as well as events which not only complicate the execution of the delivery but could even render it impossible – these especially include strikes, lockouts, official orders, subsequent unforeseeable difficulties in procuring materials, etc. – even if they occur to our suppliers or to their sub-contractors, we shall not have to respect the bindingly agreed deadlines and appointments. In this case, the delivery and performance periods shall be extended appropriately in accordance with the duration of the event which triggered the delay or interruption and also entitles us to withdraw in part or in full from that part of the contract which has not yet been fulfilled. If the hindrance persists for more than three months, the customer is also entitled to withdraw from the contract, with regard to the part of the contract that has not yet been fulfilled, after a reasonable grace period. If the delivery time is extended or if we are released from our obligation due to the customer’s or our withdrawal from the contract, the customer cannot derive any claims for damages from this. We assume no responsibility for the aforementioned circumstances, even if they should occur during an already existing delay. We may only invoke the said circumstances if we inform the customer immediately and notify him of the beginning and end of such obstacles. 5.5 If delivery is delayed for reasons for which the customer is responsible or if the customer is otherwise in default of acceptance, we shall be entitled to charge the customer for any storage costs incurred. In respect to the storage costs, this shall amount to at least 1% of the total net order value for each completed month. This does not exclude the customer’s proof that fewer costs for storage were incurred for us. In lieu of invoicing the costs of storage, we shall also be entitled to dispose of the contractual item otherwise and deliver the items to the customer with an appropriately extended deadline. The latter presupposes that the customer has set a reasonable grace period and that the possible consequences have been conveyed the customer.
6. Place of performance and transfer of risk
6.1 The place of performance for all service obligations shall be our registered office. This shall also apply to assembly and repair services as far as they are associated with our delivery. 6.2 In the case of deliveries, the risk shall be passed to the customer once the goods are handed over to the freight forwarder or another transport agent. This shall also apply if, according to the contract, we bear the freight charges by way of exception. If the dispatch is delayed upon the customer’s request, the risk shall be passed to the customer with the notification of readiness for shipment.
7. Retention of title
7.1 We shall retain ownership of the goods until full payment of the purchase price and until all claims under the business relationship with the customer, which were due at the time of the conclusion of the contract, have been made. 7.3 If the customer is in default of payment, we shall be entitled, following the unsuccessful setting of a grace period, to withdraw the goods subject to retention of title. However, such a measure does not constitute a withdrawal from the contract, so our claims shall remain unaffected in their current scope. The withdrawal from the contract shall remain unaffected and shall require express declaration. However, the rescission notice shall not require a renewed/additional deadline. If we withdraw from the contract, we may demand a reasonable remuneration for the duration of the transfer of use of the goods. 7.4 In the event of any access to the goods by third parties, in particular by seizure, the customer shall be obliged to notify us of our rights and to inform us immediately. Insofar the third party is not in a position to reimburse us for any legal or extrajudicial costs arising from an objection, the customer shall be liable for these costs. 7.5 The customer shall be obliged to carefully store the goods for us, to maintain them at his own expense, and to insure them against loss or damage at his own expense to the extent which may reasonably be expected of a prudent businessman. He hereby surrenders, in advance, his claims from insurance contracts to us. If maintenance and inspection work is required, the customer shall carry it out on time at his own expense, unless otherwise agreed.
8. Notice of defects
8.1 The customer shall be obliged to give written notice of recognizable defects immediately, but at the latest within one week after acceptance of the goods; notification of hidden defects is to be submitted in writing without delay, within one week following their discovery. These deadlines are preclusive periods. 8.2 Insignificant defects do not entitle the customer to refuse acceptance. The natural wear and tear of the delivered goods is not a defect.
9. Liability for defects
9.1 In the event of a defect in the delivery, we shall be entitled to rectify the defect or deliver a replacement (supplementary performance), at our discretion. The supplementary performance shall take place without acknowledgment of any legal obligation and does not represent the commencement of a new limitation period. This shall also apply in the event of spare parts being installed as part of the repair work. In the event of failure of the supplementary performance, the customer is entitled, at his discretion, to withdraw from the contract or to demand a reasonable decrease of the purchase price (reduction). 9.2 We shall not be liable for defects caused by unsuitable or improper use or faulty assembly or commissioning by the customer or by third parties not authorized or authorized by us (also with regard to interventions in the software), natural wear and tear, faulty or negligent treatment, unsuitable operating materials, replacement materials, inadequate foundation ground or otherwise unsuitable premises, chemical or electrical influences, as far as they are not attributable to our fault. Moreover, claims for defects that are attributable to modifications to the goods or improper repair by the customer or third parties, which were commissioned by him, shall be excluded. 9.3 If used goods (including demonstration devices) are the objects of the contract, any liability for defects shall be excluded, as far as we are not found guilty of fraudulent behavior. 9.4 If, during the examination for any alleged deficiencies, a defect is not found or is not in our area of responsibility, the customer is obliged to bear the costs incurred by the examination. The extent of these costs shall be determined in accordance with section 14.5 of these Terms and Conditions, unless otherwise agreed upon.
10. Limitation period
The limitation period for claims for defects, in so far as these are based on clause 9, is 12 months from the date of the transfer of risk. It shall also apply to claims for the compensation of consequential damages, insofar as these are not asserted in claims in tort or on the basis of fraudulent intent.
11. Limitations of liability (exclusion of liability and limitation of liability)
11.1 Apart from the event of a culpable breach of essential contractual obligations or cardinal duty in a manner which jeopardizes the purpose of the contract or in the case of the acceptance of a guarantee, we shall not be liable for damages caused by slight negligence. 11.2 In the following cases, our liability shall be limited to the foreseeable damages typical for this type of contract: 11.2.1 In the event of slight negligent breach of essential contractual obligations or cardinal duties in a manner which jeopardizes the contractual purpose, 11.2.2 In the case of gross negligence by ordinary vicarious agents (i.e. non-executive employees or executive bodies), 11.2.3 In the event of the acceptance of a guarantee, insofar as we, the seller, do not expressly accept a guarantee as to the quality of the goods against the customer as purchaser. 11.3 In the case of clause 11.2, our liability is limited to a maximum of twice the net order value of the delivery or service concerned, however, no more than a maximum of EUR 25,000.00. 11.4 Claims for damages by the customer under the circumstances described in clause 11.2 shall be time barred no later than after two years from the date on which the customer is aware of the damage or, irrespective of this knowledge, no later than three years from the date of the event giving rise to the damage. This does not apply to claims for possible defects of the goods. This shall remain in accordance to the limitation period under section 10. 11.5 Clauses 11.1 to 11.4 shall also apply, provided a product is defined solely by its class. 11.6 Except in cases of liability under the [German] Product Liability Act, in the case of injury to life, body or health, as well as in the case of liability assumed in terms of a specific guarantee for the quality of a product or in the case of fraudulently concealed defects, the above limitations on liability for all claims for compensation shall apply irrespective of their legal grounds, including claims in tort. The foregoing limitations on liability shall also apply in the event of any claims for damages on the part of the customer against our employees or agents.
11.7 CST GmbH warrants the customer that, upon handover, the products that are subject of the contract do not have any defects which will nullify or reduce the value with regard to their contractually stipulated use. 11.8 The warranty period is 12 months and it shall commence with the acceptance of the products that are subject of the contract. In the case of the delivery of a replacement or corrective action, the warranty period for the parts which have been repaired or replaced shall commence as of the renewed declaration of acceptance. 11.9 Warranty and liability claims for personal injuries and material damage are excluded if they are attributable to one or more of the following causes:
– Non-intended use of the products – Improper assembly, commissioning, operation and maintenance of the products – Non-observance of the instructions in the operating instructions regarding the transport, storage, assembly, commissioning, operation, maintenance and setting up of the products – Unauthorized constructional changes – Inadequate monitoring of machine parts which are subject to wear – Improperly performed repairs – Disaster caused by influences from extraneous elements and force majeure
12. Cancellation fee
In the event the customer cancels an order without justification, we shall be in a position to claim 15% of the gross order value for the costs incurred regarding order handling and loss of profit notwithstanding the option to claim an actual higher damage. The customer reserves the right to prove that we have not suffered any damage to this amount.
Illustrations, drawings, samples or other documents shall be subject to our copyright. If the scope of delivery and services also includes controlling the corresponding software, the control system and the other system components, together with the goods – and notwithstanding the retention of title under section 7 of these terms and conditions – shall become the property of the customer. All rights to the software, in particular the rights to the use and exploitation rights of the copyright shall remain with us, as long as they are not expressly transferred to the customer. The customer shall only be granted the restricted rights to use the software according to the purpose and scope of the contract, also in accordance with a software licensing agreement which may be concluded separately.
14. General conditions for assembly and repairs
Insofar as we also have to carry out assembly and repair work in accordance with the order confirmation, the following additional provisions shall apply: 14.1 The commencement of our work requires that the customer has fully and correctly rendered all preliminary services as are stipulated in the order confirmation or otherwise agreed upon. In particular, this applies to the required foundation work or conversion of buildings, including the power supply and discharge lines, which are necessary for carrying out the assembly or repair, in accordance with the installation plans provided by us. In the event that assembly or repair work is to be carried out on a computer system, we are only obliged to start this service after the customer has stored all of his data, which could be affected by our work, on separate data carriers and has confirmed this backup in writing. 14.2 The transport, unloading and unpacking of the goods intended for the assembly is not part of our scope of services and is therefore to be carried out by the customer at his own expense, unless otherwise agreed. 14.3 For the duration of the assembly work, the customer shall provide us with dry, heated, lockable rooms and the power required for assembly and/or repair work. 14.4 Parts that are exchanged during any repair work shall become our property. The residual value of the exchanged part shall only be set off if this has been agreed upon. 14.5 Provided nothing to the contrary is agreed upon with the customer, the invoiced charges will be on the basis of the working time and material expenses plus any travel and waiting time as well as costs for accommodation, travel expenses and subsistence allowance. In the case of work carried out under warranty, only the travel costs shall be charged to the customer. Insofar as these costs are not verified by individual receipts, the amount is determined according to our current valid price list. 14.6 The customer shall accept the assembly and repair work. Acceptance is deemed as having been effected unless the customer objects in writing within one week after receipt of the notification of the completion of the assembly or repair. 14.7 Claims for defects shall initially be limited to supplementary performance (rectification or replacement delivery). Provided that we carry out the rectification of the order, the customer has no right to withdraw from the contract for the assembly or repair work or to demand a reasonable reduction of the compensation (decrease), unless the corrective action has finally failed.
15. Applicable law and jurisdiction
15.1 The business relationship between the customer and our company shall be governed exclusively by the law of the Federal Republic of Germany, with the exclusion of any eventual referral to German private international law and to the United Nations Convention on the International Sale of Goods (CiSG). This also applies if the customer has his place of business abroad. 15.2 As far as the customer is a merchant [Vollkaufmann] according to the German commercial code [Handelsgesetzbuch], a legal entity under public law, a public special fund or has no general jurisdiction in the Federal Republic of Germany, Krefeld is the exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship (including those arising from bills of exchange or checks). We reserve the right to also bring judicial actions against the customer at his court of jurisdiction.