Terms & Conditions
General terms and conditions of sale and deliver for AKB Antriebstechnik GmbH
1.1 These terms of sale and delivery apply for all deliveries and services – including future deliveries and services – provided by our company within the framework of purchase contracts, service contracts and contracts for labour and materials (“supply contracts”). The purchaser’s terms and conditions are expressly gainsaid. They therefore do not bind us even if we have not expressly objected to them again upon receipt.
1.2 The supply contract only becomes binding with the dispatch of our order confirmation (by letter, fax or email). Subsequent changes to the supply contract require our written confirmation.
1.3 Drawings, illustrations, weights and other documents pertaining to the quote are only approximate, unless expressly confirmed otherwise. We reserve the right to make design alterations. We retain ownership and copyrights to quotations, drawings, photographs and other documentation, these may not be made accessible to third parties without our authorisation.
1.4 The latest version of the “Incoterms” from the International Chamber of Commerce apply for the interpretation of the delivery terms (e.g. fob, cif, c and f).
2. Prices and terms of payment
2.1 The prices are daily prices, they are net ex factory and/or customs warehouse. The prices valid on the day of delivery are used for calculation. Payments in advance are not considered as partial fulfillments. Cheques shall only be valid payment after being cashed. Rebates and bank fees shall be borne by the purchaser.
2.2 Unless otherwise expressly agreed, payment should be made as follows: 30 days after the invoice date regardless of receipt of the delivery item.
2.3 By derogation from §284 Para. 3 of the BGB [German Civil Code], the purchaser is not only in arrears 30 days after receipt of our invoice, but also if the requirements of §284 Para. 1 or 2 of the BGB are met, i.e. following a reminder or on the calendar date on which our claim becomes due.
2.4 In the event of late payment, the purchaser shall pay interest at the rate of 6% p.a. Above the base rate; enforcement of further damage resulting from a delay shall not be affected by this.
2.5 The purchaser shall not be entitled to a right of retention. Offsetting with counterclaims is only permissible to the extent that we recognise these to be extant and due or they are legally established.
2.6 If import licences or other approvals are required in the destination country, then the purchaser must provide us with the number, approval date and validity period for these when placing the order.
3. Delivery period
3.1 The delivery period begins on the day of order confirmation, but not before clarification of all technical and commercial details and submission of approvals which may be required. The delivery period shall be deemed to be met if the purchaser is informed of readiness for dispatch within the delivery period. Any possible modifications to the design of the delivery item requested by the purchaser within the delivery period shall interrupt and extend the delivery period accordingly.
3.2 Partial deliveries are permitted.
3.3 The occurrence of unforeseen incidents entitles us to postpone the delivery by the duration of the hindrance plus a reasonable start-up time. Such circumstances that we are not able to prevent with reasonable care under the circumstances, e.g. war, monetary policy, trade or other sovereign measures, internal unrest, forces of nature, fire, strikes, lockouts, non-delivery of primary materials through no fault of our own, traffic or operating disruptions and other instances of force majeure resulting in the fulfilment of the supply contract being jeopardised, made significantly more difficult or made impossible shall be considered to be unforeseen events. In this case, we shall be entitled to withdraw from the contract without the payment of damages. The purchaser may request clarification from us as to whether we are withdrawing or will deliver within a reasonable period. If we do not provide clarification, the purchaser may withdraw from the contract. The purchaser may not refuse partial deliveries or partial performances.
3.4 If a delay in delivery occurs for other reasons, then the purchasers must specify a reasonable grace period in writing. If the delivery item is not dispatched by us within this grace period, then the purchaser shall be entitled to withdraw upon expiry of the term for those parts which have not been dispatched or reported as ready for dispatch upon expiry of the grace period. Only if the partial performances already rendered are without interest for the purchaser shall it be entitled to withdraw from the contract in its entirety. If the purchaser suffers damages as a result of delays for which we can be held responsible, then we will provide compensation for the damages incurred, but only to the amount of ó% of the purchase price per week of further delivery delay, to a maximum of 5% of the purchase price. This limitation does not apply where we are liable in cases of intent or gross negligence. The purchaser’s right to withdrawal in the event that a grace period set for us expires without results remains unaffected.
3.5 If the purchaser does not accept the delivery item at the agreed time, it shall nevertheless be obligated to make payment of the purchase price. Storage of the delivery item in this case shall be done at the purchaser’s cost and risk.
4. Shipping, packaging and transfer of risk
4.1 All of our deliveries are made ex factory, freight and insurance costs and customers duties shall be borne by the purchaser. In the absence of other agreements, goods are shipped unpacked, with the exception of deliveries from the Nordborg factory, for which packaging is undertaken by us and included in the price. Transport insurance is only taken out at the express request of the purchaser, in their name and at their expense.
4.2 Shipping of the delivery item is done at the purchaser’s expense and risk. The risk shall pass to the purchaser upon handover of the goods to the carrier or haulier, and upon leaving our warehouse or supply factory at the latest, even for free delivery to the destination. If shipping is delayed owing to conduct by the purchaser, the risk shall pass to the purchaser upon notification of readiness for dispatch.
4.3 Goods reported as ready for dispatch must be retrieved immediately. Otherwise, we are entitled to ship them or to store them at the customer’s expense and to invoice immediately at our own discretion.
5. Reservation of ownership
5.1 The delivery item remains our property until all claims have been settled, regardless of the legal grounds, even if payments for specifically designated claims have been made. For open accounts, the reserved ownership serves as a security for our balance payment claim. If a cheque/bill procedure is executed between us and the purchaser, then the reservation of ownership remains until legal recourse can no longer be taken against us based on the bill of exchange. The same applies for any contingent liabilities which we take in the interests of the purchaser.
5.2 The processing or finishing of the reserved goods is done for us as the manufacturer within the meaning of §950 of the BGB [German Civil Code], without obligating us. In the event of processing by the purchaser with other goods which we do not own, we shall be entitled to joint ownership of the item produced, proportionally to the invoice value of our processed reserved goods in relation to the total invoice value of all goods used in production.
5.3 If the goods delivered by us are mixed or combined with other items and our ownership of the reserved goods ceases as a result of this (§§947, 948 of the BGB), then it shall be agreed that ownership of the mixed stock or the uniform product in the amount of the invoice value of our reserved goods shall pass to us and that the customer shall store these goods for use free of charge.
5.4 The new products resulting from processing or from combination or mixing shall be considered to be reserved goods for the purposes of these conditions of sale and delivery.
5.5 The purchaser shall be entitled to process and dispose of the reserved goods in the normal course of business unless it is in arrears to us, has stopped payments or a judicial bankruptcy procedure has been started against its assets. It is understood that the purchaser’s claim to resale as well as all ancillary rights are now ceded to us in full, for resale together with other goods not belonging to us only to the amount of our invoice amount for the goods supplied by us, for resale following combination, mixing of processing only to the amount of the value of our share of the ownership. The purchaser shall not be entitled to other dispositions concerning the reserved goods, in particular to pledging and or transfer of goods to third parties by way of security, unless we have granted written permission for this.
5.6 The purchaser is required to inform us immediately if third parties assert rights to the reserved goods.
5.7 The purchaser is authorised to collect the claims assigned to us. We may revoke this authorisation if the purchaser is in arrears with its payments to us or in the event of a significant worsening of its financial situation within the meaning of 5.5.
5.8 In this case, we are also entitled to request the surrender of the reserved goods for the purpose of security without entitlement for the customer to any right of retention against this claim and without hereby withdrawing from the supply contract.
5.9 If the value of the existing securities exceeds the value of the secured claims by a total of more than 20%, then we shall be obliged, upon request by the purchaser, to release securities of our choice to this extent.
5.10 If the reservation of ownership is invalid in accordance with the law of the country in which the goods are delivered, then such security for our purchase price claim as can be validly agreed in the country in question and most closely approximates the economic intent of reservation of ownership shall be considered to have been agreed. The purchaser is required to take all of the measures required for this in fact or in law for us.
6.1 The purchaser must examine the delivery item immediately upon receipt with all due care required by the circumstances; complaints concerning any defects discovered in the processes must be submitted in writing, by fax or by telephone within a grace period of 2 weeks. Complaints concerning defects which are not obvious must be submitted within two weeks of discovery if the purchaser is a merchant or a legal person under public law.
6.2 In the event of justified, immediate notification of defects, the warranty covers either repair of the delivery item or replacement of defective parts, at our discretion. As an alternative, we are also entitled, with appropriate consideration of the purchaser’s interests, to compensate for the reduced value.
6.3 If we undertake a repair or replacement, then we will bear the labour costs for our personnel or the sub-contractor used by us for this purpose. However, the purchaser shall bear the costs for returning the defective parts to us and shipping out of the repaired parts or replacement parts as well as the labour costs for the removal of the defective parts, re-installation of the repaired parts or replacements parts or in connection with repair works on the purchaser’s premises.
6.4 If we do not fulfil our obligation to provide repairs or replacements or do not fulfil it as provided for in the contract, or if this fails, the purchaser shall be entitled to a reduction in the payment or, at its discretion, cancellation of the contract of sale.
6.5 Other or further warranty claims are excluded. This also applies for claims for compensation for damage which was caused to items other than the delivered item itself (consequential damage). In the event that promised features are lacking, claims for damages may only be enforced insofar as the purchaser should have been provided by the warranty with safeguards against damage of the type which occurred.
6.6 Our warranty obligation only covers parts which we have produced ourselves. For parts which we have not produced ourselves, e.g. measuring instruments, couplings, suction and pressure hoses, the warranty is limited to conveyance of the warranty claim to our suppliers. In this case, we can only be held liable if enforcement of the assigned right fails.
6.7 Our warranty obligation ceases if the delivery item is disassembled by third parties or has been modified through the installation of parts of a different origin and there is a causal connection between the damage and such a modification. The warranty obligation also ceases if the purchaser does not or does not properly follow our instruction concerning handling of the delivery item (instruction manual). Furthermore, the warrant shall not apply if it is determined that the permissible maximum speeds or other technical parameters were exceeded.
6.8 Warranty claims expire 12 months after the transfer of risk.
7. General limitation of liability
7.1 Insofar as these conditions are not otherwise regulated, we may only be held liable for damages resulting from breach of contractual or non-contractual obligations in the case of intent or gross negligence. However, we shall only be liable for intent and gross negligence by non-managerial vicarious agents if they breach a significant contractual obligation. The above limitations of liability also apply where we provide the purchaser with advice in relation to the delivery item or its use.
7.2 All claims against us, regardless of the legal grounds, shall lapse after one year at the latest unless a shorter statute of limitations is specified or agreed legally or in these conditions of sale and delivery.
7.3 Claims owing to personal injury or damages to items used for private use are not affected by the above regulations in accordance with product liability law.
8. Place of fulfilment, place of jurisdiction and applicable law
8.1 For ex factory delivery, the place of fulfilment for our deliveries shall be the supply factory.
8.2 The place of jurisdiction is the headquarters of the company concluding the supply contract, where the purchasers is a merchant or a legal person under public law.
8.3 The same place of jurisdiction applies if the purchaser does not have a general place of jurisdiction nationally or moves its place of residence or habitual residence abroad after conclusion of the contract. In any case, we may also sue the purchaser at its registered offices.
8.4 For all legal relationships between us and the purchaser, the applicable law governing the legal relationship between domestic contracting parties at the headquarters of the company which concludes the supply contract with the purchaser shall apply.