General Terms and Conditions (GTC) of AK Industry GmbH
1. scope of application
1.1 These terms and conditions apply exclusively to entrepreneurs (Section 14 BGB), legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB. Our terms and conditions apply exclusively. Our terms and conditions shall also apply if we perform a service without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. We shall only recognise terms and conditions of the customer that conflict with or deviate from our terms and conditions if we expressly agree to their validity in writing.
1.2 These Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, these Terms and Conditions shall apply in the version valid at the time of the Customer's order or in any case in the version last communicated to the Customer in text form. These terms and conditions shall also apply to all future transactions with the customer, insofar as they are legal transactions of a related nature, and without us having to refer to them again in each individual case.
2. offer and conclusion of contract
2.1 Our "offers" are non-binding, unless the customer is expressly informed otherwise in individual cases.
2.2 If an order placed by the customer is to be regarded as an offer in accordance with § 145 BGB (which is the case in case of doubt), we can accept it within two weeks, unless otherwise stated in the order.
3. documents provided
We reserve the property rights and copyrights to all documents provided to the customer in connection with the potential order placement, such as calculations, drawings, etc.. These documents may not be made accessible to third parties unless we give the customer our express written consent. If we do not accept the customer's offer within the time limit (i.e. generally within the period specified in Clause 2.2), these documents must be returned to us immediately.
4 Prices and payment
4.1 Unless otherwise agreed in writing, our prices for goods are ex works excluding packaging and plus VAT at the applicable rate. Shipping costs (including packaging costs) shall be invoiced separately. If we do not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding any transport costs charged by the customer) shall apply.
transport insurance) in the amount of EUR 110.00 shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
4.2 Payments must be made exclusively to our business account. The deduction of a discount is only permitted if agreed in writing.
4.3 Unless otherwise agreed, the purchase price shall be paid within 7 days of the invoice date and (in the case of goods to be supplied by us) within 7 days of delivery or acceptance of the goods (in the latter case, the later date shall be decisive). Interest on arrears shall be charged at a rate of 9 % above the respective base interest rate per annum. We reserve the right to assert higher damages caused by default.
4.4 Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in labour, material and distribution costs for deliveries made 3 months or later after conclusion of the contract (unless we are responsible for a delay).
5 Offsetting and rights of retention
The customer shall only be entitled to set-off or retention if his counterclaims have been recognised by declaratory judgement or are undisputed. Furthermore, the customer shall only be authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
6. delivery time
6.1 The delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period shall be up to 30 weeks from conclusion of the contract. Delivery periods shall only commence after complete clarification of all execution details and presuppose the timely and proper fulfilment of the customer's obligations, in particular that all technical requirements have been clarified and the customer's installation or assembly environment fulfils the technical requirements.
6.2 If we are unable to meet binding delivery deadlines, we shall inform the customer of this immediately and at the same time notify the customer of the expected new delivery deadline. If the service is not available within the new delivery period for reasons for which we are not responsible (non-availability of the service), we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the customer. A case of non-availability of the service in this sense is in particular the late delivery by our supplier if we have concluded a congruent hedging transaction and neither we nor our supplier are at fault.
6.3 If the customer fulfils contractual obligations - including cooperation or ancillary obligations - in particular opening a letter of credit, providing domestic or foreign certificates, making an advance payment or submitting a financing confirmation, checking drawings or samples, disclosing all technical construction information,
If the customer fails to fulfil his obligations in good time, e.g. creation of the required installation or assembly environment or similar, we shall be entitled to postpone our delivery times - without prejudice to our rights arising from the customer's default - in accordance with the requirements of our production process.
6.4 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a written reminder from the customer is required.
6.5 The rights of the customer under Clause 9, Clause 10 of these Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment), shall remain unaffected.
7. transfer of risk on despatch
If the goods are dispatched to the customer at the customer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest when the goods leave the factory/warehouse (upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the dispatch). This applies irrespective of whether the goods are dispatched from the place of fulfilment or who bears the freight costs.
8. reservation of title
8.1 We reserve title to the delivered goods until full payment of all (present and future) claims arising from the concluded contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this.
8.2 In the event of breach of contract by the customer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not at the same time include the declaration of cancellation; we are rather entitled to demand only the return of the goods and to reserve the right to cancel the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
8.3 The customer is obliged to treat the goods with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the customer must carry this out in good time at his own expense or order it from us with sufficient advance notice. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered goods are seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to
If the customer is obliged to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us.
8.4 The customer is authorised to resell the goods in the normal course of business until revoked in accordance with this Clause 8.4. The customer hereby assigns to us the customer's claims arising from the resale of the goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply irrespective of whether the goods have been resold without or after processing. The customer shall remain authorised to collect the claim even after the assignment. Our authorisation to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the customer fulfils his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we can demand that the purchaser informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the buyer's authorisation to further sell and process the goods subject to retention of title.
8.5 The treatment and processing or transformation of the goods by the customer shall always be deemed to have been carried out in our name and on our behalf. In this case, the customer's expectant right to the goods shall continue in the remodelled item. If the goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our goods to the other processed items at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis and shall keep the resulting sole ownership or co-ownership for us. In order to secure our claims against the customer, the customer shall also assign to us such claims in the amount of our possible co-ownership share which accrue to him against a third party through the connection of the reserved goods with a property; we hereby accept this assignment.
8.6 We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20 %.
9. warranty
9.1 In the case of goods with digital elements or other digital content, we shall only be obliged to provide and, if necessary, update the digital content if this is expressly stated in a quality agreement. In this respect, we accept no liability for public statements made by a third-party manufacturer or other third parties.
9.2 During the warranty period (Clause 11.1), defects shall be remedied by AK Industry GmbH, at the request of the purchaser, by repair or replacement of the defective parts at the expense of AK Industry GmbH. The prerequisite for this is that the Purchaser properly fulfils its statutory obligation to inspect and give notice of defects. In the case of
If the goods are intended for installation or other further processing, an inspection must in any case be carried out immediately prior to installation or processing. If the Purchaser fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported in good time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, in particular, the Purchaser shall have no claims for reimbursement of corresponding costs (removal and installation costs).
9.3 Defects during the warranty period must be reported in writing immediately, but at the latest within two weeks of discovery, stating the type and serial number.
9.4 Whether a repair or a replacement is carried out shall be at the discretion of AK Industry GmbH. If the type of subsequent fulfilment chosen by us is unreasonable for the purchaser in the individual case, he may reject it. Our right to refuse subsequent fulfilment under the statutory conditions remains unaffected. AK Industry GmbH shall be entitled to defective parts that are replaced by way of warranty. If the defective parts are not returned, a subsequent invoice will be issued. The subsequent fulfilment does not include the dismantling, removal or dis-installation of the defective item or the installation, fitting or installation of defect-free goods if we were not originally obliged to provide these services; any existing statutory claims of the Purchaser for reimbursement of corresponding costs ("dismantling and installation costs") shall remain unaffected.
9.5 Unless the parties agree otherwise, defective deliveries or parts thereof shall be returned to the respective place of dispatch. The shipping costs shall be borne by AK Industry GmbH, unless it later transpires that the goods were free of defects if the Purchaser knew or could have recognised that the defect did not exist. We shall also bear or reimburse any other expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these Terms and Conditions, if a defect actually exists. Otherwise, we may demand reimbursement from the customer of the costs arising from the unjustified request to remedy the defect if the customer knew or could have recognised that there was in fact no defect.
9.6 If the rectification of defects fails in whole or in part, the customer shall be entitled to reduce the purchase price or to withdraw from the contract. If the defects are so serious that a repair is not possible within a reasonable period of time and the goods cannot be used for their intended purpose or their use is only possible to a limited extent, the customer shall have the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this purpose. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.
9.7 In the event of resale within the warranty period, warranty claims may only be assigned to the customer or third parties with the written consent of AK Industry GmbH.
9.8 Liability for defects is excluded for the purchase of used goods, unless otherwise agreed.
10 Other liability
10.1 AK Industry GmbH shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. In all cases of liability under this clause 10, liability for culpable injury to life, limb or health shall also remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
10.2 If AK Industry GmbH has breached an essential contractual obligation (cardinal obligation) through simple negligence, liability shall be limited to the damage typical of the contract and foreseeable at the time of conclusion of the contract. "Material" contractual obligations within the meaning of these Terms and Conditions shall be deemed to exist if the Customer relies or may rely on their proper fulfilment because they characterise the contract.
10.3 Any further liability on the part of AK Industry GmbH is excluded. In the event of simple negligence, AK Industry GmbH shall in particular not be liable for damage that has not occurred to the delivery item itself, in particular not for loss of profit or other financial losses.
10.4 Insofar as liability is excluded or limited, this shall also apply to the legal representatives, employees and vicarious agents of AK Industry GmbH.
10.5 Advice and information shall be provided to the best of AK Industry GmbH's knowledge, but without obligation and to the exclusion of any liability.
10.6 The Purchaser may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if AK Industry GmbH is responsible for the breach of duty. A free right of cancellation on the part of the purchaser (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
11. limitation period
11.1 Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title for AK Industry GmbH's deliveries and services shall be 12 months, beginning after commissioning, but the limitation period shall not be longer than 15 months after delivery, unless commissioning is delayed for reasons for which we are responsible.
11.2 If the goods are a building or an item that has been used for a building in accordance with its customary use and whose
defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory regulation (Section
438 para. 1 no. 2, para. 2 BGB). Further special statutory provisions on the limitation period shall also remain unaffected.
11.3 The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases.
11.4 Claims of the Customer under Clause 10.1 shall become time-barred exclusively in accordance with the statutory limitation periods.
12. mediation clause
In the event of a dispute arising from this contract, the parties undertake to conduct mediation at the Memmingen Mediation Centre for Business Conflicts of the Augsburg Chamber of Industry and Commerce before bringing an action.
13. other
13.1 These Terms and Conditions and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
13.2 The place of fulfilment and exclusive place of jurisdiction for all disputes is our registered office, unless otherwise stated in the order confirmation.
13.3 Should individual provisions of these Terms and Conditions be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or fills the gap.
Status: 28.10.2024