General Terms and Conditions (GTCs) for AKK GmbH
§ 1 Scope of application
- the GTC apply exclusively to natural or legal persons or partnerships with legal capacity who act in the exercise of a commercial or independent professional activity.
- they shall also apply to all future business relationships in which no express reference is made to them if they were already part of a previous business relationship. AKK GmbH (hereinafter referred to as AKK) shall not recognise any terms and conditions that conflict with, deviate from or supplement these GTC unless AKK has expressly agreed to their validity in writing. The GTCs shall also apply if AKK carries out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from these GTCs or supplement them.
3 All contracts for goods and services and all other agreements and legally relevant declarations must be in writing in order to be legally effective, whereby transmission by fax or e-mail shall be sufficient. This also applies to additions and amendments to agreements. Insofar as AKK employees make verbal declarations or assurances that go beyond the written contracts, these must be confirmed in writing by AKK.
§ 2 Offer and conclusion of contract
- AKK’s offers are subject to change and non-binding, unless they are confirmed as binding. Information on the subject matter of the service (e.g. dimensions, weights and technical data) as well as representations of the same (e.g. drawings and illustrations) shall not become part of the contract and shall only be approximate unless they are expressly made the subject matter of the contract. This also applies to characteristics of the subject matter of the service that the customer expects on the basis of public statements made by AKK (advertising, Internet presence, etc.). Furthermore, AKK reserves the right to make design and form changes during the delivery period, provided that these are due to improvements in technology or changes in the law, and provided that the object of the service is not significantly altered as a result and the suitability for the contractually stipulated use is not impaired.
- the order is binding for the customer. AKK shall be entitled to accept the contractual offer contained in the order within 3 weeks of receipt of the order by AKK. Acceptance of the contractual offer shall be effected by sending a written order confirmation (or by executing the order). The content of the order confirmation shall be exclusively decisive for the content of the contract.
§ 3 Scope of services
- the written order confirmation is exclusively decisive for the scope of the service.
- assembly and installation of the delivery item shall be carried out exclusively by AKK or by a company commissioned by AKK. This also applies to the maintenance of the delivery items. This may only be deviated from if AKK gives the purchaser express written permission to carry out the assembly and installation work itself or to have it carried out by third parties. In all other respects, reference is made in this connection to the provisions of § 14 of these GTC (Assembly and Service Conditions).
AKK shall be entitled to make partial deliveries, provided that the acceptance of such partial deliveries is not unreasonable for the customer, and in particular provided that the provision of the remaining service is ensured and the customer does not incur any significant additional work or costs as a result. Each partial delivery can be invoiced separately.
§ 4 Prices
- the prices are valid for the scope of services and deliveries listed in the order confirmation. Additional or special services will be charged separately.
- the prices are ex works, excluding packaging and ancillary costs (e.g. freight, postage, insurance costs) and plus value added tax at the statutory rate. The costs of packaging shall be charged to the customer according to the time and effort involved.
- in the case of export transactions, all taxes, fees, customs duties or other charges in connection with the conclusion or performance of the contract are not included in the price and shall be borne additionally by the customer.
§ 5 Terms of payment
- unless the contracting parties have made any other agreement, the customer undertakes to make payment within 10 days of receipt of the object of performance and the invoice. Timeliness of payment shall be determined by the date of receipt of payment by AKK.
- if the customer defaults on a payment obligation, he shall pay AKK interest at a rate of 9 percentage points above the respective base interest rate. AKK reserves the right to claim higher default damages from the customer.
- bills of exchange and cheques shall only be accepted on account of performance if this has been expressly agreed. In the case of bills of exchange and cheques, payment shall not be deemed to have been made until they have been honoured. Discount and expenses are to be borne by the customer and are due immediately. If a bill of exchange is protested, AKK shall be entitled to return all bills of exchange still in circulation.
- a discount may only be deducted by express agreement. A promised cash discount shall not be granted if the customer is in arrears with payment for other services at the time of payment. The customer may only withhold security if the parties to the contract have made an express agreement to this effect.
- a right of retention on the part of the customer is excluded unless it is based on the same contractual relationship. Set-off by the customer shall only be permitted if the counterclaim is undisputed or has been finally and conclusively determined by a court of law.
- if, after conclusion of the contract, circumstances become known which are likely to reduce the creditworthiness of the customer, this shall result in all claims becoming due immediately. In addition, AKK shall be entitled to perform further services only against advance payment and to demand suitable payment securities (e.g. bank guarantee) from the customer to secure the outstanding claims, as well as to withdraw from the contract after setting a reasonable period of grace or to demand compensation for non-performance, further to prohibit the customer from reselling the subject of the contract and to recover any unpaid items at the customer’s expense.
§ 6 Delivery and place of performance
- delivery is subject to the proviso that AKK itself receives correct and timely deliveries. The customer shall be informed immediately of any insufficient self-supply.
The place of performance for the delivery shall be the registered office of AKK. Where agreed, AKK shall ship the goods to the agreed place of delivery. AKK shall determine the dispatch route and the means of dispatch, as well as the forwarding agent and the freight company. This shall not result in a change in the place of performance.
3 If acceptance of the subject of the contract by the customer has been agreed, acceptance must take place immediately after delivery, alternatively after AKK has notified the customer that the goods are ready for acceptance. The customer may not refuse acceptance in the event of an insignificant defect. The commissioning of the subject of the contract shall be deemed to be acceptance.
§ 7 Delivery time and delivery deadline
- delivery periods and delivery dates shall only be binding if they have been designated as binding in the AKK order confirmation.
- the start of the delivery period shall be subject to the order confirmation having been sent. However, it shall not commence before all commercial and technical details of execution have been clarified, the customer has provided all preliminary services, and the agreed down payments have been received. AKK shall also be entitled – particularly in the case of divisible services – to provide the (partial) service ahead of schedule.
The delivery deadline shall be deemed to have been met if the item to be supplied has left AKK’s works by the deadline or the customer has been notified that it is ready for dispatch.
- if non-observance of the delivery period is due to force majeure, industrial disputes or other events beyond AKK’s control (e.g. operational disruptions of all kinds, difficulties in procuring materials and energy, transport delays, strikes, lockouts or inadequate self-supply to AKK), the delivery period shall be extended accordingly.
- in the event of late delivery, the customer shall only be entitled to withdraw from the contract after notice of default has been given and a reasonable period of grace of at least 4 weeks has been granted, if readiness for dispatch has not been notified in the meantime.
- compliance with the delivery period presupposes that the customer has fulfilled his contractual obligations. If these are not fulfilled in accordance with the contract, or if ambiguities or other difficulties arise during the execution of the order which require clarification and for which AKK is not responsible, the delivery period shall be extended accordingly. AKK’s other rights shall remain unaffected by this.
- if dispatch, collection or acceptance is delayed for reasons for which the customer is responsible, AKK shall be entitled to charge the customer for the costs incurred by storage after notification of readiness for dispatch, collection or acceptance in a reasonable manner and in accordance with local practice. AKK shall also be entitled, after setting a reasonable deadline and its fruitless expiry, to dispose otherwise of the item to be supplied and to supply the purchaser within a reasonably extended period.
§ 8 Transfer of risk
- the risk of loss and deterioration of the item to be supplied shall pass to the customer when the item to be supplied has left AKK’s works, even if partial services are provided or AKK has assumed other obligations (e.g. assumption of shipping costs, delivery, installation, commissioning).
- at the written request of the customer, AKK shall insure the consignment at the customer’s expense against theft, breakage, fire, water and transport damage and other insurable risks.
- if dispatch, collection or acceptance is delayed or does not take place as a result of circumstances not attributable to AKK, the risk shall pass to the customer on the day of notification of readiness for dispatch, collection or acceptance. AKK shall also be obliged in this case to insure the goods/services at the expense of the customer, insofar as the latter requests AKK to do so in writing.
- dispatched items must be accepted by the customer, even if defects are reported. This shall not affect the customer’s warranty rights.
§ 9 Reservation of title
AKK shall retain title to the subject matter of the service (“reserved goods”) until all claims arising from the current business relationship with the customer – irrespective of the legal grounds – have been settled in full. This shall also apply to any future and conditional claims. In the case of a current account, the reserved title shall secure the respective claim from the balance (balance reservation).
- the customer is obliged to treat the reserved goods with care and to insure them adequately at his own expense against theft, breakage, fire, water and other damage at replacement value. If maintenance or inspection work is required, the customer must carry this out in good time at his own expense.
3 If the customer acts in breach of contract (in particular in the event of default in payment), AKK shall be entitled to take back the goods subject to reservation of title. In the event of default in payment, it shall not be necessary to set a deadline in advance. The customer shall allow access to his business premises during normal business hours as required for the repossession. After taking back the goods subject to reservation of title, AKK shall be entitled to make appropriate use of them after having threatened to do so, whereby the proceeds of such use, less the costs of such use, shall be set off against the outstanding liabilities of the customer. Instead of taking back the goods immediately, AKK shall be entitled to temporarily suspend the reserved goods for technical reasons until all outstanding payments have been received.
- the customer shall only be entitled and authorized to resell the goods subject to reservation of title or otherwise dispose of them on condition that he himself reserves title to the goods subject to reservation of title until the purchase price has been paid in full by his customer. The customer hereby assigns to AKK all claims arising from the resale of the goods to the amount of the final invoice (including value added tax) against his customer or third parties, together with all ancillary rights, until all claims of AKK have been settled in full, irrespective of whether the goods subject to reservation of title have been further processed in the meantime.
- the customer undertakes to notify his customer of the assignment of claims that has already taken place. He shall not be entitled to sell the reserved goods to customers who have excluded or limited the assignment of claims against you.
- the customer remains authorized to collect the claim even after the assignment. This does not exclude AKK’s right to collect the claim itself. However, AKK shall not collect the assigned claims as long as the purchaser forwards the incoming amounts directly to AKK. However, the customer’s direct debit authorisation shall lapse upon revocation by AKK, at the latest upon the customer’s suspension of payments, and in the event of default of payment or an application for the opening of insolvency proceedings against the customer’s assets. Upon expiry of the direct debit authorisation, the customer shall immediately disclose the assigned claim and the debtor, provide all information required for collection, hand over the underlying documents and notify the debtors of the assignment in writing.
- the customer may not sell, pledge or assign as security the goods subject to reservation of title without the written consent of AKK. In the event of seizure, confiscation or other disposition of the reserved goods by third parties, the client must draw attention to AKK’s ownership and inform AKK immediately. The customer shall be liable for the costs of any third-party action against execution required under Section 771 of the German Code of Civil Procedure (ZPO), insofar as these costs are not reimbursed by the third party.
- the processing of the reserved goods shall always be carried out for AKK as manufacturer within the meaning of § 950 BGB. If the reserved goods are processed by the customer, AKK shall acquire co-ownership of the new item in proportion to the value of the reserved goods to the other processed or transformed items at the time of processing or transformation. If AKK’s ownership lapses due to combination or mixing, the customer hereby assigns to AKK the ownership rights to the new stock or item to which it is entitled to the extent of the value of the goods subject to reservation of title, and shall keep them safe for AKK free of charge.
9) To secure its claims against it, the customer shall assign to AKK the claims arising from the combination of the reserved goods with the real estate of a third party.
- on request, the customer shall provide AKK with comprehensive support in protecting the rights of AKK arising from § 9 in the country in which the reserved goods are located.
§ 10 Notice of defects
- the customer shall inspect the object of performance immediately upon receipt and give notice of defects in accordance with the provisions of § 377 HGB (German Commercial Code). The customer shall bear the costs of the inspection. The complaint must be made to AKK in writing, stating the specific defect. Complaints about incomplete delivery and other recognisable defects must be notified to AKK in writing without delay, but at the latest within 5 working days of receipt of the service; hidden defects must be notified without delay after their discovery, but at the latest within 5 working days of their discovery. If the customer has notified AKK of any defects late or not at all, he shall not be entitled to any claims in respect of these defects. In all other respects, the full burden of proof for the existence of the defect, for the time of discovery of the defect and for the timeliness of the notice of defects shall lie with the customer.
- if AKK has commissioned a third party to deliver the item at the request of the customer, the customer shall record any visible transport damage in the presence of the third party and have it confirmed in writing. If transport damage was not externally apparent on receipt of the item, the customer must notify the third party in writing immediately after discovery, but no later than 7 working days after delivery, and inform AKK of this at the same time. If the customer violates the aforementioned notification and information obligations, claims against AKK for the underlying transport damage shall be excluded.
§ 11 Warranty
- subject to the obligations of the customer set out in § 10 of these GTC, AKK shall, in the event of a defect, provide subsequent performance either by remedying the defect (rectification of defects) or by delivering a defect-free item (subsequent delivery). This shall not constitute recognition of a legal obligation.
- the customer shall allow AKK the time necessary for the supplementary performance and must allow unhindered access to the item to be supplied. If the customer fails to do so, all warranty rights against AKK shall lapse.
- the costs incurred in connection with the supplementary performance (shipping, travel, transport and material costs) shall not be reimbursed to the client, insofar as these are based on the fact that the client has taken the item of performance to a location other than that of delivery or has installed the item of performance. The customer shall reimburse AKK for any increase in costs caused by this. For the purpose of subsequent performance, the customer shall provide AKK with existing tools, fitters and assistants free of charge.
- the customer shall bear the costs incurred in connection with any unjustified assertion of defect rights. The customer shall have no rights in respect of defects, particularly in these cases: No defect, improper use, faulty assembly/commissioning, natural wear and tear, improper handling, improper maintenance, use of unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, insofar as these are not within AKK’s sphere of responsibility. The customer shall have no defect rights in respect of parts subject to wear and tear.
- if AKK’s subsequent performance is unsuccessful, the customer may withdraw from the contract. The right to reduce the purchase price is excluded. The provisions under § 12 of these GTC shall apply to any claims for damages.
- in the event of improper rectification of defects by the customer, any rights against AKK in respect of defects shall be excluded because of the consequences thereof. The same shall apply to any changes made to the subject of performance by the customer without prior consent.
- the customer may only derive rights from guarantees, in particular from guarantees of quality, if these have been promised in the order confirmation, if they have been expressly designated as “guarantees” or “guarantees of quality” and if the obligations arising from the guarantee have been expressly recorded.
- if the customer purchases a used item from AKK, all warranty rights of the customer shall be excluded, unless a defect has been fraudulently concealed or a guarantee of quality has been breached.
- the limitation period for rights in respect of defects shall be 12 months from receipt of the item to be supplied or from acceptance, if such has been agreed. This limitation shall not apply if a defect was fraudulently concealed or a guarantee for the quality of the object of performance was assumed.
- only pastes and materials purchased from AKK shall be used in the use of the subject matter of the delivery. AKK undertakes to supply these pastes to the customer. If the customer uses pastes or materials in the operation which he has not ordered and purchased from AKK, the customer shall have neither warranty claims nor the contractually agreed service and support services of AKK. The customer must therefore obtain the pastes and waxes to be used from AKK for the AKK jet systems; for the laser systems, the customer must enquire at AKK about the materials to be used and engraved.
§ 12 Liability
In the case of simple negligence, AKK shall only be liable for damage resulting from the breach of material contractual obligations, the fulfilment of which is essential to the proper execution of the contract and on the observance of which the client has regularly relied and may rely; in this case, liability shall be limited to typical foreseeable damage. This limitation of liability shall also apply to damages caused by gross negligence on the part of AKK employees or agents who are not executive employees.
In these cases, the limitation period shall be 2 years, beginning at the time the claim arose and the customer became aware or could have become aware of the facts giving rise to the claim. Irrespective of the customer’s knowledge, the claim shall become time-barred three years after the event giving rise to the damage. In the case of claims for damages due to defects, the provision in § 11 number 9 shall apply.
The above limitations of liability shall not apply to claims based on fraudulent conduct or a guarantee of quality, to claims under the Product Liability Act or to claims for damages based on injury to life, body or health. Similarly, the limitations do not apply to claims based on gross negligence on the part of AKK’s organs and executive staff. In these cases, liability is limited to 10% of the gross order value.
§ 13 Copyright, software use
- cost estimates, illustrations, drawings, samples and other documents that AKK provides to the customer as part of the contract preparation process, during the execution of the contract or on any other occasion are strictly confidential. They are the property of AKK and may not be made available to third parties. Conversely, AKK undertakes not to pass on to third parties any documents marked as confidential by the client. The customer and third parties commissioned by the customer are expressly prohibited from reproducing the items and goods supplied by AKK.
- insofar as the sale of software is also the subject of the contract, the purchaser shall be granted a non-exclusive and non-sublicensable right to use the software. All other rights to the software shall remain with AKK. The software supplied shall only be made available to the customer for use in the object of performance intended for it. The customer shall not be entitled to use the software for any other purpose. The software may only be duplicated, revised, translated or converted from the object code to the source code by the customer within the framework of the statutory regulations (§§ 69 a ff UrhG). In doing so, the customer undertakes not to remove or change the manufacturer’s details (trademark, copyright and other property right notices).
§ 14 Installation and Service Conditions
Insofar as AKK undertakes to carry out assembly, maintenance and/or service work, the following supplementary conditions shall apply:
- the commencement of the above-mentioned work is subject to the condition that the customer provides all the preliminary services that have been contractually agreed in full and properly. This applies in particular to any necessary foundation work or building conversions, including the supply and discharge lines required to carry out the work in accordance with the plans provided by AKK. If assembly, maintenance and/or service work is to be carried out on a computer system, AKK shall not be obliged to perform until the customer has stored all data that could be affected by this work on separate data carriers and has confirmed this backup in writing.
- transport, unloading, moving to the actual location and unpacking of the subject of the service is not part of AKK’s scope of services and must therefore be carried out by the customer at his own expense. These are not assembly, maintenance and/or service work owed by AKK.
- for the duration of the work, the customer shall provide dry, heated, lockable rooms and the energy required for the work at its own expense.
- the parts replaced in the course of repair work shall become the property of AKK. The residual value of the replaced part shall only be credited in favour of the customer if this has been agreed.
- if AKK has undertaken to assemble the item to be supplied or to provide other services, the costs incurred in this respect shall be invoiced separately to the customer. If no separate agreement has been made with the customer, the costs shall be invoiced on the basis of the working time and material costs plus any travel and waiting time, as well as costs for overnight accommodation, travel expenses and daily allowance. If the amount of these costs cannot be verified by individual receipts, the amount of the costs shall be determined in accordance with the AKK price list valid at the time.
- the customer must accept the installation, maintenance and/or service work. If the contractual partner defaults on acceptance of the assembly work, acceptance shall be deemed to have been effected after the expiry of twelve working days from the notification of completion of the work. If the orderer has put the object of performance into use without acceptance, acceptance shall be deemed to have taken place after the expiry of six working days after the start of use. The customer shall submit reservations of recognizable defects in writing by the aforementioned dates at the latest.
- in the case of work carried out in a defective manner, the provisions in §§ 10 and 11 of these General Terms and Conditions shall apply accordingly.
§ 15 Data protection
AKK shall be entitled to process the data on the customer received in connection with the business relationship or in connection with this, regardless of whether this data originates from the customer himself or from third parties, in accordance with the provisions of the Federal Data Protection Act.
§ 16 Assignment
The customer shall not be entitled to assign claims arising from the business relationship with AKK in whole or in part without the written consent of AKK.
§ 17 Applicable law, place of jurisdiction
The entire business relationship between AKK and the customer shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods.
The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be Krefeld. AKK shall, however, be entitled to bring an action at the customer’s place of business.
§ 18 Final provisions
- contractual language is German, for contracts with a foreign contractual partner English.
- the headings of these General Terms and Conditions and of the contracts concluded with the customer are for guidance only and shall have no meaning for interpretation.
- if individual provisions of these GTC or the contractual agreement between the contracting parties are invalid, the validity of the remaining provisions shall not be affected. In this case, the contracting parties undertake to agree on a new provision which comes closest to the purpose of the invalid provision.