Gerneral Term and Conditions
I. Area of Application
All contracts and future contracts, the subject matter of which is performances and deliveries by AKRUS to a contract partner, with the exception of special agreements, shall be subject exclusively to the following terms and conditions
1. Our offers are not binding. The explanations given in writing by both parties shall define the supplies or performance. If a contract has been concluded without those reciprocal explanations, the order shall be defined as in either the written confirmation of order from the supplier or performing party (hereinafter called "the supplier") or, if no confirmation is provided, in the written order of the customer. Any of the customer's purchasing conditions which differ from these general terms of business shall not form part of the contract.
2. Any subsidiary agreements shall be valid only if they have been confirmed in writing.
3. Statements in our catalogs and prospects concerning size, weight, color, material and equipment of the products are made only approximately. They may vary on the actual product unless we provide a binding confirmation. Slight changes due to technical development may not be rejected by the customer.
Prices mentioned are to be understood in Euro ex-works Elmshorn not including packing, transportation and value added tax.
1. All delivered goods shall remain the property of the supplier until complete payment of the price and fulfilment of any further obligations arising from existing business relations with the customer. We are empowered to withdraw from the contract if the customer comes in default.
2. The customer is entitled to resell the retained goods or combine them with other movables as part of his regular business. He shall ensure that as far as possible the supplier retains the title and hereby assigns to the supplier the claim to the purchase price of the item - which may be processed - from its purchaser to the full amount but no more than up to 120% of the supplier's claim. The supplier accepts this assignment. The customer must inform the supplier of the purchaser's name.
3. The customer is obliged to inform us about any encroachment on our retained goods by third party’s rights. Until total fulfilment of all our claims, the retained goods may not be pledged, assigned or disposed in any other not permitted way. The customer must perform, omit or arrange anything necessary to support the upholding of our ownership.
4. The customer undertakes to keep the retained goods in perfect condition and to insure them against the customary risks. Upon request he shall provide the supplier with evidence of the insurance. The customer shall immediately notify the supplier of any damage. The customer hereby assigns to the supplier any delay in payment, stoppage of payment or any claims he may acquire against the insurers or third parties by reason of the damage. The supplier accepts this assignment. In the event of more than 2 weeks' delay in payment, stoppage of payment or any major deterioration in its financial circumstances, the customer undertakes to deliver the retained goods to the supplier. The customer shall be liable for any costs. The supplier is empowered freely to sell the retained goods at a suitable price or to take possession of them himself.
5. At the customer's request, the supplier shall cancel the liens to the extent that the residual value they secure exceeds secured claims by more than 20 %.
6. The customer shall immediately inform the supplier in writing of any institution of judicial composition or bankruptcy proceedings, any seizure of the retained goods or other attachments by third parties. He must advise his creditors or the third parties of the supplier's retention of title. The customer shall be liable for any costs incurred by the supplier for action taken against attachments by third parties.
7. If in the case of exports specific measures are necessary at the place which the goods are located after delivery, in order to validate the aforesaid retention of title or assignment, the customer shall advise the supplier thereof and carry out such measures at his own expense. If retention of title and/or the other aforesaid rights are unacceptable at the place which the goods are located after delivery, the customer shall at his own expense take all necessary action to ensure that the supplier acquires liens on the delivered goods which resemble these rights as closely as possible.
8. Exercise of the rights attaching to the reservation of ownership shall not be considered as withdrawal from the contract.
1. Payments shall be remitted free of charges net within 30 days. In the case of special arrangements, payment is to be accomplished on the arranged date.
2. We are entitled to demand payment in advance or security settlements for special products or in case of business relations with customers to us unknown.
3. The customer comes in default if no payment of the sales price is made upon our duly made reminder notice. Irrespectively of that the customer comes in default if no payment is made on a date specially agreed to. The regulation by law after which the customer comes in default automatically if no payment is made within 30 days after the bill has been sent, remains untouched.
4. Given the case of default the supplier may charge interest payable on arrears to the amount of 8% over and above the respective basic rate of interest of the Deutsche Bundesbank according to § 247 BGB.
5. If the customer is in default or if we take notice of circumstances questioning his solvency, we are entitled to demand either immediate payment and fulfilment of all existing and remaining claims or an assignment of security or to withdraw from the contract. Obligations on our side are existent only insofar as their payment is assured / fulfilled.
6. The customer is neither entitled to hold back payments past due nor to balance out any claims unacknowledged or not past due.
1. The exact day for terms of delivery is approximately. It shall be defined through the supplier’s written confirmation.
2. We exclude any liability in the event of claims for damages due to delayed delivery.
3. If the customer is in default, we are exempted from our obligation to deliver for the term of delay. Notwithstanding the customer’s delay his obligation of acceptance during this term exists furthermore.
4. If the supplier is unable to comply with the term for delivery or performance owing to force majeure such as mobilization, war, civil disorders, strikes, lock-outs or unforeseeable impediments, the term shall be suitably extended without the customer's consent thereto being required.
1. The risk shall be transferred to the customer for delivery when the consignment is dispatched or collected ex works Elmshorn. This will be at the time of hand-over of the goods to the freight-carrier. This will also apply in the events of force majeure or other unforeseeable impediments.
The items shall be packed with the best possible care. They shall be dispatched at the discretion of the supplier.
2. In case an offer concerning cost and mode of conveyance shall be made upon the customer’s request we will insure the conveyance suitably at the customer’s expense.
3. The customer must make an immediate notice of any damages or deficiency in quantity after receiving the delivered goods.
1. Our sales documents, catalogs, prospects or price lists, shall remain our property. The supplier shall have unrestricted copyright.
2. These may not even partially be made accessible to unauthorised parties or rival companies without the supplier's prior consent.
3. Drawings and other documents not deriving from quotations belonging to a customer’s ordered and payed for development must be returned immediately upon request to the quoting party. We are entitled to claim damages in case of unauthorized usage of our documents resulting in damage of our interests.
4. We shall only be held responsible for faults arising out of misprints or mistakes in prooved cases of deliberate intent or gross negligence.
1. Orders given for special products oblige the customer to their acceptance and payment. The customer shall be responsible for uncertain orders. Specially produced items shall not be taken back.
2. We are not obliged to examine any samples, drawings or other documents delivered to us for special products with respect to their compliance with existing proprietary rights.
The supplier has the following liability for defects which include lack of guaranteed characteristics:
1. Warranty expires 12 months from the date of delivery.
This period of limitation is valid for claims for damages, direct and indirect, to the conclusion of this agreement.
If extended warranty terms are provided, the preceding clause 2 is valid accordingly.
2. Products delivered and installed must be examined by the customer immediately. In case of defects, the supplier must be notified, without delay, in writing, or if necessary by telex. An exact description of the defect must be provided, moreover § 377 HGB shall apply.
3. If the complaint is justified, the goods shall be repaired by the supplier, or the customer shall receive replacement parts against the return of defective parts, free of charge and freight paid, further rights shall be excluded.
4. All replacements or repairs must be accomplished by the salesmen’s customer service. In the case of extraordinary incidents, the necessary measures must be agreed with the supplier prior to repair or service.
5. Claims by the salesmen, especially for faults at the conclusion of the contract; active infringement of claims or obligation to give advice, for consequential damages or malfunction are excluded, unless liability is obligatory in cases of deliberate intent or gross negligence by the supplier or his assistents.
6. The liability for damage does not include damage and malfunction due to chemical, magnetic, electric or other external causes.
7. Guaranteed characteristics exist only as they relate to the product's written specifications.
8. The conditions for warranty terms referred to in no. 1, sentence 2 and no. 5above shall not apply if the law prescribes longer terms.
9. No other claims by the customer against the supplier and his assistants in fulfilling the contract are permitted, especially any claims for compensation for damages which have not occured to the supplied article. This shall not apply if liability is obligatory in cases of gross negligence, deliberate intent or lack of the guaranteed characteristics.
10. Nos. 1 - 9 above shall apply mutatis mutandis for any claims by the customer for repairs, replacements or compensation which have arisen because of proposals or advice given under the contract or because of infringement of any subsidiary contractual obligations.
Should any parts of the contract be invalid in law, the other parts shall remain binding. In such a case a provision is applicable which meets best the legal and economic aim of the inoperative provision. This shall not apply if compliance with the contract causes unreasonable hardship to either party.
1. The sole place of fulfillment and legal venue shall be the head office and branch of the supplier in Elmshorn.
2. The contractual relations shall be governed exclusively by German Law as set down in the German Commercial Code and Civil Code and shall preclude the laws on the international sale of goods, even if the contract partner should be headquartered abroad.