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General terms and conditions of AAH Apparatebau A. Hofheinz GmbH

Last updated: July, 2015

General - scope

1. Our terms and conditions apply exclusively; we do not recognise any conflicting or deviant conditions of the customer’s unless we have agreed to their applicability expressly in writing. Our TACs apply also if we deliver to the customer without reservation in spite of knowing about conflicting or deviant conditions of the customer’s.
2. All arrangements met between us and the customer for the purpose of executing this contract are defined in this contract in writing.
3. Our TACs apply only to entrepreneurs for the purposes of Sec. 310 para 1 Civil Code.

Offer - offer documents

1. Our offers are not binding. Technological modifications or changes of shape, paint and/or weight reserved within reasonable limits.
2. By ordering our products the customer declares obligingly the intention to acquire the ordered product or to place the order.
We are entitled to accept the contract offer included in the order within two weeks of receipt. Acceptance may be confirmed in writing or by delivering the product to the customer.
Any drawings, photocopies, measures, weights or other performance data are obliging only if this has been expressly agreed in writing.
3. The request letter or confirmation letter shall state the requested performances and the prospective date of completion. Preliminary works like making specifications, project planning documents, plans, drafts and models requested by the customer are also liable to reimbursement on account of the arrangement.
The customer shall receive a copy of the order form.
Prices for the affected positions may be stated in the order form by referring to our pricing and working catalogues to be inspected at our site. Prices are ex works unless otherwise stated.
4. We reserve property rights and copyrights in any pictures, drawings, calculations and other documents. This includes documents marked 'confidential'. Disclosure to third parties needs our explicit written approval.
5. The final contract is subject to correct and timely supply by our suppliers. This applies only if we do not have to answer for any failure to deliver, including but not limited to conclusion of a congruent hedging transaction with our supplier.
The customer shall be informed without undue delay if the performance is not available. The quid pro quo shall be refunded without undue delay.

Prices - terms of payment

1. Unless the order confirmation states otherwise, our prices are 'ex works' excluding packaging which is separately charged.
2. The statutory VAT is not included in our prices; it will be separately shown in the invoice at the statutory rate on the day of invoicing.
3. Deduction of discount requires special written agreement.
4. The purchase price shall be due for payment net (without deduction) within 30 days of the invoice date unless the order confirmation says otherwise. The statutory regulations concerning the consequences of late payment apply.
5. The customer shall be entitled to offset only if any counterclaims have been legally ascertained, undisputed or acknowledged by us. Moreover, the customer is entitled to exercise a right of retention if the counterclaim is based on the same contractual relationship.

Delivery time

1. The beginning of the delivery time stated by us assumes previous clarification of all technical questions.
2. Compliance of our liability of delivery further assumes timely and proper fulfilment of the customer's obligations. Objection of unfulfilled contract remains reserved.
3. If the customer is in default of acceptance or culpably violates other cooperation obligations, we are entitled to demand damages in this respect, including any additional expenses. Further claims or rights remain reserved.
4. If the requirements of para. (3) apply, the risk of accidental loss or deterioration of the purchased item shall pass to the customer as soon as the customer is in default of acceptance or payment.
5. We shall be liable under the statutory provisions if the underlying purchase contract is a firm deal according to Sec. 286 para. 2 no. 4 Civil Code or Sec. 376 German Commercial Code. We shall also be liable according to statutory provisions if the customer is entitled to assert that any interest in continuing the contract has ceased to exist owing to default of delivery for which we are to blame.
6. We shall also be liable under the statutory provisions if default of delivery is owed to wilful or grossly negligent breach of contract including default of our representatives or agents. If default of delivery is owed to a grossly negligent breach of contract, our liability for damages shall be limited to foreseeable, typically occurring damage.
7. We shall also be liable under the statutory provisions if the default of delivery is owed to culpable offence against an essential contractual obligation; in this case, however, liability for damages shall be limited to foreseeable, typically occurring damage.
8. In addition, in the event of default of delivery we shall be liable for each full week of delay to compensate by a lump-sum of 1% of the delivery value but not more than a total of 10% of the delivery value.
9. Other legal claims and rights of the customer shall be reserved.

Transfer of risk - packaging costs

1. Unless the order confirmation states otherwise, delivery is agreed ‘ex works’.
2. Separate agreements apply to taking packaging back.
3. If the customer so desires, we will cover the delivery by transport insurance; the occurring costs shall be borne by the customer.

Deterioration of assets

1. If the customer or an affiliated company fails to comply with existing obligations to pay or if we receive unfavourable information about the customer's financial situation - even if said financial situation was the same when the contract was concluded - we may claim the whole remaining debt due under abatement of all existing payment arrangements and demand either a deposit or advance payment, withdraw from the contract or demand return of the product. Evidence of such circumstances shall apply, inter alia, as provided if a bank or a credit agency confirms the situation.
2. The provisions of Sec. 1 apply accordingly if the acceptor's assets should deteriorate after the elimination of changes or if our bank rejects a change submitted to the discount. If a change or an agreed rate is not paid on time, any outstanding changes and any remaining claims against the customer shall be due under abatement of any possibly agreed respites without undue delay.

Liability for defects

1. Warranty claims by the customer assume that the customer has complied with the examination and complaint obligations emerging from Sec. 377 German Commercial Code.
2. If a purchased good is found defective, the customer shall be entitled to subsequent performance, i. e. remedy, or to delivery of another, non-defective product at own discretion. In case of remedy or spare delivery we undertake to carry all expenditure required for supplementary performance, including but not limited to transport, travel, labour and material costs, provided that these are not increased by delivering the purchased product to a place that is not the place of performance.
3. If supplementary performance fails, the customer shall be entitled to require withdrawal or reduction at own discretion.
4. We shall be liable under the statutory provisions if the customer asserts claims for damages based on intent or gross negligence including intent or gross negligence of our representatives or agents. If we are not blamed for intentional breach of contract, the liability for damages is limited to foreseeable, typically occurring damage.
5. We shall be liable under the statutory provisions if we culpably breach an essential contractual obligation but liability for damages is limited to foreseeable, typically occurring damage.
6. If the customer is otherwise entitled to claim damages instead of performance due to a negligent breach of duty, our liability for compensation is limited to foreseeable, typically occurring damage.
7. The liability for culpable injury to life, limb or health shall be unaffected; this also applies to any compelling liability under the product liability law.
8. Unless something else is provided above, any liability is excluded.
9. The period of limitation for warranty claims is 12 months from transfer of risks. This shall not apply if the purchased good is usually used for a building and has caused the defect.
10. The period of limitation in case of recourse of delivery pursuant to Sec. 478, 479 Civil Code are unaffected; it is five years from delivery of the defective item.

Joint and several liability

1. Any further liability for damages beyond the provisions of Section 6 is excluded without taking the legal nature of the asserted claim into account. This applies including but not limited to claims for compensation from culpa in contrahendo, other breaches of duty or tort claims for property damage pursuant to Sec. 823 Civil Code.
2. The definition of para. (1) applies as well if the customer requires compensation for fruitless expenditure instead of claiming remedy.
3. If liability for damages towards us is excluded or limited, this also applies to personal liability of our staff, representatives and agents.

Retention of title

1. We reserve title to the purchased goods until receipt of all payments emerging from the delivery agreement. If the customer breaches the contract, including but not limited to default, we shall be entitled to take the purchased good back. Taking back the purchased good constitutes withdrawal from the contract. After taking back the purchased good we are authorised to reuse it, proceeds of which are to be credited on the liabilities of the customer less reasonable costs.
2. The customer undertakes to treat the purchased good carefully; including but not limited to insuring it at own expenses against damage from fire, water or theft at least up to the amount of the replacement value. Provided that servicing and inspection works are necessary, the customer shall carry them out at own expenses on time.
3. In case of seizure or other interventions of third parties, the customer shall inform us in writing without undue delay so that we can file a complaint according to Sec. 771 Civil Process Order. If the third party is not able to refund our judicial and extrajudicial expenses for a charge according to Sec. 771 Civil Process Order, the customer shall be liable for any loss incurred.
4. The customer is entitled to resell the purchased good in the ordinary course of business, assigning to us any claims amounting to the final invoice amount (including VAT) of our claim that accrue to the customer from reselling to buyers or against third parties, no matter whether the purchased good has been resold processed or unprocessed. The customer remains authorised to collect this claim even after assignment. Our authority to collect the claim remains unaffected. We undertake, however, not to collect the claim as long as the customer meets any payment obligations emerging from revenue, does not get in default and has not applied for opening settlement or insolvency proceedings nor is subject to bankruptcy. If any of this is, however, the case, we may require that the customer announces the resigned demands and their debtors, provides all information required for the claim, submits the relevant documents and informs the debtors (third parties) of the assignment.
5. Any processing or transformation of the purchased good is made by the customer in our name. If the purchased good is processed with other objects that do not belong to us, we shall acquire joint ownership of the new item proportional to the value of the goods (invoice total including VAT) to the other processed items at the time of processing. The same provisions apply to the item resulting from processing as to the item delivered under reservation.
6. If the goods are inseparably mixed with other items not belonging to us, we shall acquire joint ownership of the new item proportional to the value of the goods (invoice total including VAT) to the other mixed objects at the time of mixing. If the mixing is such that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportional joint ownership to us. The customer shall keep the sole ownership or co-ownership for us.
7. The customer shall also resign to us any claims against a third party that help secure our claims against the customer that emerge from connecting the purchased good with a property.
8. We undertake to release the securities we are entitled to at the request of the customer insofar as the realizable value of our securities exceeds the secured claims by more than 10%; the choice of securities to be released is ours.

Jurisdiction - place of delivery

1. If the customer is a businessperson, our business location is place of jurisdiction; however, we are entitled to sue the customer at the applying local court.
2. The law of the Federal Republic of Germany applies; the applicability of the CISG is excluded.
3. Provided that the order confirmation does not state otherwise, our place of business is place of performance.