General Terms and Conditions (GTC) of AK Industry GmbH

1. scope of application

(1) These Terms and Conditions of Sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognise terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.
(2) These Terms and Conditions of Sale shall also apply to all future transactions with the Customer, insofar as these are legal transactions of a related nature (as a precaution, the Terms and Conditions of Sale should always be attached to the order confirmation).

2. offer and conclusion of contract

If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks.

3. documents provided

We reserve the property rights and copyrights to all documents provided to the customer in connection with the 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 period specified in § 2, these documents must be returned to us immediately.

4 Prices and payment

(1) Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus VAT at the applicable rate. Packaging costs shall be invoiced separately.
(2) Payment of the purchase price shall be made exclusively to the account specified overleaf. The deduction of a discount is only permitted if a special written agreement has been made.
(3) Unless otherwise agreed, the purchase price must be paid within 7 days of delivery. Interest on arrears shall be charged at a rate of 8 % above the respective base interest rate p.a. (see Annex 1). We reserve the right to claim higher damages for default.
(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 more after conclusion of the contract.

5 Offsetting and rights of retention

The customer shall only be entitled to set-off if his counterclaims have been recognised by declaratory judgement or are undisputed. The customer is only 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 specified by us upon acceptance of the order. If this is not the case, the delivery period shall be 20 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 for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, 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 failure of our supplier to deliver to us in good time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
6.3 If the customer does not fulfil 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, providing all technical construction information, creating the required installation or assembly environment or similar in good time, we shall be entitled to postpone our delivery times appropriately in accordance with the needs of our production process - without prejudice to our rights arising from the customer's default.
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 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 when the goods are dispatched to the customer, at the latest when they leave the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of fulfilment or who bears the freight costs.

8. reservation of title

(1) We reserve title to the delivered goods until all claims arising from the delivery contract have been paid in full. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the object of purchase if the customer is in breach of contract.
(2) The customer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he shall be obliged to insure it 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 the contractor with sufficient advance notice. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
(3) The customer is authorised to resell the goods subject to retention of title in the normal course of business. The customer hereby assigns to us the customer's claims from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The customer remains 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 collected proceeds, 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
(4) The treatment and processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the expectant right of the customer to the object of sale shall continue in the remodelled object. If the purchased item is 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 purchased item to the other processed items at the time of processing. The same shall apply in the event of mixing. If the mixing is carried out 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 sole ownership or co-ownership thus created in safe custody for us. To secure our claims against the customer, the customer shall also assign to us such claims which accrue to him against a third party through the combination of the reserved goods with a property; we hereby accept this assignment.
(5) 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 AK Industry GmbH's deliveries and services are subject to a warranty period of 12 months, beginning after commissioning, whichever occurs first, but no longer than 15 months after delivery if delivery or commissioning is delayed for reasons for which we are not responsible. The warranty is limited to Germany, Austria and Switzerland. In all other countries, the customer shall bear the costs for travelling, travel and accommodation as well as shipping and customs duties. In general, software cannot be guaranteed to be error-free.
9.2 The fulfilment of the warranty of systems requires regular maintenance by AK Industry GmbH after 12 months starting after commissioning, whichever occurs first, as well as the purchase of original wear and spare parts directly from AK Industry GmbH. In addition, the fulfilment of the warranty requires the operation of the systems by personnel verifiably trained by AK Industry GmbH.
9.3 During the warranty period, 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 his statutory obligation to inspect and give notice of defects. The warranty does not extend to software or consumables and wearing parts, which also include tools and mechanical parts.
9.4 The warranty shall not be extended for spare parts replaced by us (no software or consumables and wearing parts).
9.5 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. Any warranty claim shall lapse in the event of intervention by the customer or a third party.
9.6 Whether a repair or replacement is carried out is at the discretion of AK Industry GmbH. Defective parts that are replaced under warranty shall become the property of AK Industry GmbH. If the defective parts are not returned or if the replacement part cannot be refurbished, a subsequent invoice shall be issued.
9.7 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.
9.8 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 be entitled to refuse subsequent improvement.
9.9 Claims for damages due to defects are limited to the scope specified in Section 10 if the statutory requirements are met. The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
9.10. The limitation period in the event of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is 5 years, calculated from delivery of the defective item.
9.11. In the event of resale within the warranty period, the warranty shall only be transferred to the purchaser or third party with the written consent of AK Industry GmbH and assignment of the warranty by the purchaser.
9.12. Liability for defects is excluded for the purchase of used goods, unless otherwise agreed.

10. 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. Insofar as we are not accused of wilful breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage. AK Industry GmbH shall also be liable in accordance with the statutory provisions if an essential contractual obligation is culpably breached; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage. Liability for culpable injury to life, limb or health shall remain unaffected in all cases of liability under this Section 10; this shall also apply to mandatory liability under the Product Liability Act.
10.2 If AK Industry GmbH has negligently breached a material contractual obligation (cardinal obligation), liability shall be limited to the damage typical of the contract. "Material" contractual obligations within the meaning of these GTC 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 The above limitations and exclusions of liability do not apply to claims for personal injury or property damage to privately used items caused by defective products.
10.5 Insofar as liability is excluded or limited, this shall also apply to the legal representatives, employees and vicarious agents of AK Industry GmbH.
10.6 AK Industry GmbH shall only be liable for damage to the systems in the event of demonstrable fault on the part of its own personnel.
10.7 Advice and information shall be provided to the best of the knowledge of the employees of AK Industry GmbH, but without obligation and to the exclusion of any liability. Insofar as the Product Liability Act applies, the limitations of liability pursuant to paragraphs 1 and 2 shall not apply to the resulting claims of the customer for liability and endangerment, bodily injury and private property damage, unless the law expressly permits such an exemption from liability.
10.8 To the extent permitted by applicable law, AK Industry GmbH shall not be liable for any damages (including damages for loss of profit, business interruption, loss of business information or data or other financial loss) arising from the use of the delivered products or the inability to use these products, even if AK Industry GmbH has been informed of the possibility of such damage. In any case, AK Industry GmbH's liability shall be limited to the amount actually paid for the product or service. Any liability for consequential damage is excluded.

11. 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.

12. other

(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of fulfilment and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.
(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
(4) Should individual provisions of this contract 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.

Appendix 1:

Although the prohibitions on clauses in the catalogue elements of Sections 308 and 309 BGB pursuant to Section 310 (1) BGB do not apply to general terms and conditions used vis-à-vis entrepreneurs within the meaning of Section 14 BGB, it cannot be automatically assumed by implication that the use of clauses such as those mentioned in Sections 308 and 309 BGB vis-à-vis entrepreneurs generally withstand the content review of Sections 305 et seq. BGB. Pursuant to Section 307 (1), (2) No. 1 BGB, which also applies to the use of GTCs vis-à-vis entrepreneurs, an unreasonable disadvantage to the contractual partner is to be assumed in case of doubt if the clause is not compatible with the essential basic ideas of the statutory provision from which it deviates. According to case law, this means that the catalogues of prohibited clauses in Sections 308 and 309 of the German Civil Code (BGB) also take on indirect significance in commercial transactions via the interpretation of Section 307 BGB.
The clause prohibitions of Section 308 BGB are generally transferable to sales between entrepreneurs, because the commercial particularities are taken into account in their room for manoeuvre. In contrast, such a generalised solution is not possible for the prohibitions of Section 309 BGB, but the violation of Section 309 is also an indication of the invalidity of the clause in sales between entrepreneurs. In this case, it is advisable to have the individual case examined by a legal expert before using the GTC.

Bad Wörishofen, April 2024