Standard Business Terms of Ahlbrandt System GmbH

 

§1 Application
1. All transactions with us are based on our Standard Business Terms unless otherwise agreed and set forth in writing in the individual case.

2. Standard business terms of the customer that vary from, contradict, or supplement these Standard Business Terms shall form part of the contract only if and insofar as we have expressly consented in writing to the application thereof. Confirmations from the customer that make reference to the customer’s standard business terms or standard purchasing terms are hereby expressly rejected.

§2 Offers
1. Our offers are always subject to change and non-binding. Orders are not considered to have been accepted until they have been confirmed by us in writing.

2. We reserve the right to make technical and design-related deviations from descriptions and statements in brochures or prospectuses, catalogs and written documents as well as model, design and material changes in the course of technical advancements or statutory changes if and insofar as the item supplied is not substantially changed and the changes are reasonable for the customer.

3. We reserve ownership and copyright with regard to cost estimates ordered from us, drawings, and other documents; these items must not be made available to third parties.

§3 Prices; price changes
1. If and insofar as list prices are agreed, the price list valid at the time of the parties’ entry into the contract is the determining factor. All prices are to be understood as being in euros ex works, including loading within the plant, plus packaging and value-added tax (VAT) at the statutory rate as applicable at the time of the parties’ entry into the contract. Time for travel to and/or from the site, expenses, travel expenses and similar costs are, as a basic principle, billed separately.

2. Price changes are permissible if a period of more than four months elapses between the time of entry into the contract and the agreed delivery date. If wages, material costs, or market cost prices rise after then, but before completion of the delivery, we are entitled to raise the price by a reasonable amount in accordance with the cost increases. The customer is permitted to rescind the contract if the price increase is equivalent to more than 5% of the agreed price.

3. If the customer is a business entity, a public-law legal entity, or a public-law special fund, price changes are permissible pursuant to the foregoing provision if a period of more than six weeks elapses between the time of entry into the contract and the agreed delivery date; the customer has no right of rescission in this case.

§4 Delivery; delivery and performance period
1. The scope of the delivery is governed by our written order confirmation. Side agreements and amendments require our written confirmation.

2. The periods and time limits mentioned by us are non-binding unless expressly agreed otherwise in writing.

3. All delivery periods/time limits are subject to correct and timely delivery to us. They commence as of the date of our order confirmation, but not before all details of performance have been clarified and any agreed advance payment has been received. They shall be extended, without prejudice to our rights in case of default by the customer, by the amount of time by which the customer is in default of provision of any documents, permits or approvals, etc., to be procured by the customer.

4. Binding delivery periods are deemed to have been met if readiness for delivery has been communicated or the item supplied has left our company’s grounds by the end oft he period.

5. Even in the case of delivery periods agreed on a binding basis, we are not liable for impossibility of delivery or for delays in delivery and performance insofar as they are caused by force majeure or by other events that were not foreseeable at the time of entry into the contract (such as difficulties procuring materials or energy, disruptions of all kinds in business operations, transportation delays, strikes, legitimate lockouts, labor shortages, difficulties in procuring necessary official permits and authorizations, governmental measures or lack of, incorrect, or untimely supply from our suppliers or their suppliers) and for which we are not responsible. If and insofar as such events render delivery or performance significantly more difficult or impossible for us and the impediment is of more than merely temporary duration, we are entitled to rescind the contract. In the event of impediments of a temporary duration, the delivery or performance periods shall be extended by the amount of time by which the impediment persists, plus a reasonable run-up period. If and insofar as the customer cannot reasonably be expected to accept the delivery or performance as a result of the delay, the customer is permitted to rescind the agreement by way of a written declaration made to us without delay.

6. Partial and advance deliveries are permissible if and insofar as

-       the partial delivery is usable for the customer within the scope of the contractually intended purpose;

-       the delivery of the remainder of the goods ordered has been ensured; and

-       the customer does not incur any significant additional effort or costs as a result thereof.

§5 Passage of risk; acceptance and default in acceptance
1. The risk shall pass to the customer no later than when the item supplied is transferred to the shipper, freight forwarder, or other third party designated for transportation purposes. This applies even if partial deliveries take place or if further services, such as the cost of transportation or delivery and installation, are undertaken by us. At the customer’s express request, we will insure the shipment at the customer’s expense against the risks of theft, breakage, and transportation, fire, and water damage as well as other insurable risks.

2. If shipping or transfer of the item is delayed as a result of a circumstance whose cause lies with the customer, the risk shall pass to the customer upon notification that the item is ready for shipping.

3. Without prejudice to the customer’s warranty rights, the customer is required to accept delivered items even if they exhibit minor defects.

4. If the customer does not accept the goods on time, we are entitled to set a reasonable additional period of time for the customer to do so. After this additional period elapses, we are entitled to rescind the contract by way of a written declaration and, if the customer is responsible for the failure to accept the goods, to demand payment of damages in lieu of performance. Within the scope of a claim for damages, the seller is permitted to demand 20% of the agreed price as compensation without proof, unless the amount of the damage or loss incurred was demonstrably lower. Nothing herein shall affect the right to assert claims for damage or loss that is actually higher in amount.

5. If and insofar as acceptance or partial acceptance has been agreed, the following surrogate forms of acceptance also apply: (1) The customer uses the item supplied within two weeks after transfer thereof without having sent us a specific list of defects that are actually present. (2) The customer has made changes to the item supplied without our consent.

§6 Warranty
1. The warranty periods for our products shall be in accordance with the statutory provisions.

2. The customer is required to carefully inspect the item supplied without delay following delivery thereof and to notify us of any defects without delay after they are discovered. Items supplied are considered approved if we have not received a written complaint regarding obvious defects, or regarding other defects that were apparent upon a careful inspection performed without delay, within two weeks following delivery or, in the case of hidden defects, within the statutory warranty period.

3. If defects in the item supplied should arise as a result of failure to comply with the operating or service and maintenance instructions or due to inappropriate or improper use, defective installation or commissioning by the owner or third parties, natural wear, defective or negligent handling, inappropriate operating supplies or materials, substitute materials, defective construction work, an inappropriate substrate or foundation, or chemical, electrochemical or electrical influences, the customer shall have no claims against us for material defects unless the defects are attributable to our fault. We are not liable for the consequences of any improper changes or repairs made by the customer or third parties without our approval.

§7 Warranty liability and other liability on the seller’s part
1. If there is a defect for which we are responsible, we are, at the customer’s option, entitled and obligated to eliminate the defect or supply a replacement. We are permitted to refuse the type of cure chosen by the customer if it is possible only at disproportionate expense. In this case, the customer’s claim shall be limited to the other type of cure.

2. The customer is required to give us the requisite time and opportunity to effect the necessary cures; otherwise, we are exempt from liability for consequences arising therefrom. The customer has no right to eliminate the defect itself or through third parties and demand that we provide reimbursement for the necessary expenditures except in order to prevent disproportionately great damage or losses, in which case we must be notified without delay.

3. In the cure should fail, i.e. if effecting a cure is impossible or unreasonable or the other party refuses to effect a cure or the cure is inappropriately delayed, the customer has the right, within the scope of the statutory provisions, to reduce the purchase price by an appropriate amount or rescind the contract. In the case of minor defects, however, the customer shall only have the right to reduce the price. If the defect is based on fault on our part, the customer is permitted to demand damages on the conditions set out in section 7 (5) hereof.

4. Our liability for damages, irrespective of the legal grounds therefor, is limited pursuant to the provisions of this subsection insofar as the matter is based on fault. We are liable only if and insofar as we or our vicarious agents have acted with intent or gross negligence or in the case of claims on the customer’s part with regard to warranted characteristics of the product as well as in cases in which, pursuant to the German Product Liability Act (Produkthaftungsgesetz), there is liability for personal injury or property damage sustained by privately used items with regard to defects in the item supplied.

5. Indirect and consequential damage and/or losses that are merely the consequence of defects in the item supplied are eligible for compensation only if and insofar as such damage and/or losses are typically to be expected if the item supplied is used as intended and as agreed.

§8 Retention of title
1. The goods supplied by us remain our property (goods subject to retention of title) until such time as all claims to which we are entitled against the customer pursuant to the contract are satisfied. The retention of title shall also remain in effect for all claims acquired by the seller after the fact in connection with the goods supplied, e.g. based on repairs, replacement deliveries or other performance. The latter does not apply if the repair is unreasonably delayed or has failed.

2. If the customer is a business entity, a public-law legal entity, or a public-law special fund, the retention of title also applies to the claims to which we are entitled vis-à-vis the customer based on the ongoing business relationship.

3. Until such time as the foregoing claims are satisfied, the customer is not permitted to pledge the items or transfer them by way of security. In the case of distraint, seizure or other dispositions by third parties, the customer is required to notify us without delay and to provide us with all information and documents necessary in order to safeguard our rights. It must be pointed out to enforcement officials or a third party, as the case may be, that the goods are our property.

4. In the event of behavior that is in breach of contract by the customer, particularly in the event of default of payment, we are entitled to take back the goods after issuing a warning notice, and the customer is obligated to relinquish the goods.

5. In the event of use vis-à-vis business entities (Kaufleute) as defined in the German Commercial Code (Handelsgesetzbuch), a public-law legal entity or a public-law special fund, the following also applies in addition to the foregoing: The customer is entitled to resell the items supplied in the ordinary course of business, but assigns to us by way of security, already at this time, all claims accruing to the customer as a result of the resale, in the amount of the purchase price agreed between us and the customer (including VAT), irrespective of whether the items supplied were resold without being processed or following processing. We authorize the customer on a revocable basis to collect on the claims assigned to us in the customer’s own name, but for our account. Nothing herein shall affect our authorization to collect on these claims ourselves; however, we agree not to collect on the claims as long as the customer is duly complying with the customer’s payment obligations and is not in default of payment, and in particular provided that no application for institution of insolvency proceedings has been filed. If, however, this is the case, we are permitted to demand that the customer provide notice of the claims assigned and the debtors therefor, provide all information needed for collection purposes, turn over the relevant documents, and notify the debtors (third parties) of the assignment of the claims.

6. If the customer processes or transforms the goods, this always takes place on our behalf. If these items supplied are processed together or combined with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of the items supplied to the other different items at the time of processing or combination thereof.

7. The customer shall keep the goods subject to retention of title in safekeeping for us at no charge.

8. We agree to release the goods subject to retention of title and the items or claims replacing them at the customer’s request if and insofar as the value thereof exceeds the amount of the claims that are secured and have not yet been paid by more than 20%.

9. If we assert the reservation of title or distrain the items supplied, this action is not deemed to constitute rescission of the contract unless we expressly state such rescission in writing.

§9 Rescission by the customer
If the customer rescinds the contract without justification, the customer is obligated to pay a settlement equal to not less than 25% of the value of the order or contract, without individual proof. Nothing herein shall affect the right to claim damage or losses in a higher amount or the customer’s right to prove that no damage or loss was actually sustained, or that the amount of damage or loss actually sustained was less than the lump-sum amount of damages claimed.

§10 Setoff; assignment; retention
1. The customer is not permitted to offset claims of its own against our claims except if the customer’s claims are not disputed by us, have been acknowledged in writing, or have been established with final, binding legal force.

2. The customer is not permitted to assign claims.

3. The customer is not permitted to assert a right of retention except insofar as such right is based on claims under the relevant contract.

§11 Payment
1. Unless otherwise agreed, our invoices are due and payable 14 days after the invoice date, without any deductions.

2. Payment orders, checks and bills of exchange are accepted only by separate written agreement and only on account of payment, with all costs arising as a result thereof being included at the customer’s expense.

3. If the customer falls in default of payment, we are entitled to charge interest at the customary bank rate, but not less than nine percentage points above the basic rate of interest, from the relevant point in time onward.

4. If the customer fails to comply with the customer’s payment obligations as agreed or discontinues payment, or if we become aware of other circumstances that call the customer’s creditworthiness into question, we are entitled to declare the entire remaining amount owed due and payable, or to demand advance payments or provision of security.

§12 Export
Exporting our goods to non-EU countries requires our written consent, regardless of the fact that the customer is responsible for obtaining any and all official import and export authorizations on the customer’s own.

§13 Final provisions
1. The place of performance is Lauterbach, Germany, postal code 36341.

2. In dealings with enterprises, a public-law legal entity, or a public-law special fund, the exclusive place of jurisdiction is Lauterbach, Hessen, Germany, postal code 36341. We are, however, also entitled to file a legal action in the location where the customer has its registered office.

3. Solely the laws of the Federal Republic of Germany apply, to the exclusion of all international and supranational (contractual) legal systems, especially the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Last updated: 11/2014 
 

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