| GENERAL TERMS AND CONDITIONS OF SALE |
AIR COST CONTROL
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| 09/11/12 |
1.1 The following Terms and Conditions shall exclusively apply to all business transactions with the Purchaser. They apply to business transactions with business enti- ties, legal public entities and trusts governed by public law. Conflicting general terms and conditions of the Pur- chaser shall only apply if they are expressly confirmed in writing by AIR COST CONTROL GMBH (A2C).
1.2 These Terms and Conditions also apply, without the need for an express agreement, to all future transactions be- tween the Parties as well as when A2C, in the knowledge of the Purchaser’s opposing or different terms and condi- tions, carries out the delivery or service without reserva- tion.
1.3 To the extent that these Terms and Conditions provide for the written form, this requirement shall be satisfied by transmission using fax or electronic means.
2. OFFERS AND PRICES
2.1 A2C's offers are subject to change without notice unless otherwise agreed in writing.
2.2 All prices are understood to be the price charged for delivery ex A2C’s works, without cash payment discount or any other such discounts, plus value added tax. Addi- tional services (for example, transit costs) and any other costs (for example for transportation or packaging, load- ing, shipping and customs duties) shall, unless otherwise agreed, be borne by the Purchaser.
2.3 The price estimates are based upon the material costs, labour costs and purchase prices prevailing at the time an order is confirmed. In the event of a change of such costs between the confirmation of order and the agreed deliv- ery date, A2C shall retain the right to undertake a corre- sponding price adjustment after the expiry of four weeks after receipt of the confirmation of order. A2C will prove the changes of such costs to the Purchaser upon request. In the event that this adjustment leads to a price increase which exceeds either the general cost of living index or the then current cost of similar items by a significant amount, the Purchaser may withdraw from the contract. Any withdrawal must be declared to A2C in writing (with advice of receipt) immediately following notification of the price increase. Otherwise the withdrawal will not be effec- tive. The Purchaser’s withdrawal from the contract shall also not be effective if A2C, immediately after receipt of the withdrawal notice, declares that it will perform the contract under the originally agreed price.
3. CONTRACT CONCLUSION AND SUBJECT MATTER
3.1 A contract shall be concluded if A2C has either confirmed their acceptance of the order in writing, or they have car- ried out the delivery. Any requirement of A2C for a signed copy of the confirmation of order to be returned shall only be for the alleviation of the burden of proof.
3.2 A2C’s written confirmation of order shall determine the nature and scope of A2C's obligations, provided the Pur- chaser does not oppose the content of the confirmation of order in writing without delay after receipt of the confirma- tion of order.
3.3 To the extent that there are no limits on permissible variations stated in the confirmation of order, and that such limits do not result from expressly acknowledged Purchaser specifications, variations which are customary in trade are permitted. A guarantee (§ 443 German Civil Code) shall only be given by A2C if A2C expressly indi- cates in writing that these amount to guarantees.
3.4 If, at the request of the Purchaser, after the conclusion of contract, A2C agrees to the cancellation of a contract by way of exception, this shall only take place upon the payment of a lump-sum charge in the amount of 10 % of the net value of the contract. Amicable cancellation only takes place out of goodwill on A2C’s part; the Purchaser has no claim to amicable cancellation of a contract.
3.5 Legal Provisions for Exports.
3.5.1 If a necessary export licence is not granted or the pre- requirements for an export licence which has already been granted subsequently fall away, without A2C being responsible for this, or if the Purchaser appears on a na- tional or international sanctions list or appears after the conclusion of the contract, A2C is entitled to a right of re- scission or cancellation. The Purchaser shall immediately inform A2C in writing of such relevant circumstances in this connection. The scheduling shall be reasonably postponed in proportion to the period of delay resulting from the subsequent examination of the pre- requirements.
3.5.2 If A2C exercises its right of rescission of cancellation pursuant to clause 3.5.1, the Purchaser is liable for all di- rect and indirect damage (including lost profits, financial penalties, legal costs etc.), which are incurred by A2C as a result of the early termination of the contract. In this case, the Purchaser is not obliged to provide any consid- eration and shall receive back from A2C any payments already made, as far as A2C does not set-off such amounts with possible counterclaims; the Purchaser is not entitled to any further claims against A2C, in particu- lar claims for damages.
3.5.3 The goods to be delivered by A2C are designed for disposition in the country for delivery agreed with the Purchaser. The Purchaser is obliged to consider whether the re-export of the goods is subject to the laws on for- eign trade and payments and export control provisions of the Federal Republic of Germany, the country of delivery as well as, where applicable, other countries, and wheth- er the Purchaser can be obliged to obtain a licence. The Purchaser is obliged to inform himself in individual cases of the decisive Law on Foreign Trade and Payments and where applicable to apply for and obtain the necessary li- cences.
3.5.4 The Purchaser is exclusively responsible for compliance with all import provisions and permits as well as for ob- taining any technical permission, operational or special permissions etc. in relation to the goods required in coun- tries outside Germany. The non-grant of permissions, ap- provals etc. which may be required for the use outside of Germany shall not in particular constitute a defect or grounds for rescission or avoidance of the contract by the Purchaser. Upon request however, A2C will assist the Purchaser with obtaining the permissions etc. by making available documentation concerning the goods; any costs thereby arising (e.g. for translations, certifications etc.) shall be borne by the Purchaser.
4. PAYMENT TERMS
4.1 The payment is to be effected within 30 days of the invoice date.
4.2 If periods for payments are exceeded A2C shall charge interest at 8 percentage points above the respective basic interest rate of the European Central bank per annum, unless A2C can prove higher damages.
4.3 Notwithstanding any other claims, A2C has the right to demand advance payment or provision of security and to delay the fulfilment of its own obligations in the event that, following contract closure, facts become known which question the Purchaser’s reliability, in particular with re- spect to the Purchaser’s ability to pay. A2C shall be enti- tled to withdraw from the contract if the Purchaser has provided false information regarding its credit worthiness, or when, based upon reliable information, the Purchaser’s credit worthiness is objectively found not to exist. Any and all claims for compensation by the Purchaser arising from A2C's withdrawal from the contract are excluded.
4.4 The Purchaser is not entitled to reduce A2C's claims to counter claims or to exercise a right of retention unless the counter claims or right of retention have been acknowledged by A2C in writing or legally ascertained.
5.1 Scheduled dates by A2C are always non-binding esti- mates only, unless delivery periods or delivery dates are expressly marked as binding in the confirmation of order. Absolute fixed dates must be marked with a correspond- ing suffix. Delivery periods shall commence only after re- ceipt of any agreed pre-payments as well as receipt of all documents pertaining to the order, and proper clarifica- tion of all technical details.
Subsequent changes to a contract will automatically result in a reasonable postponement of the scheduled dates.
5.2 Two weeks after a non-binding delivery date or delivery period has been exceeded, the Purchaser may request in writing delivery by A2C within a reasonable period of time. Upon expiry of this delivery deadline A2C shall be in delay, unless A2C is not responsible for the non- performance.
5.3 A2C shall be entitled to make partial deliveries.
5.4 A2C’s duty to perform is suspended in case of force majeure (including disruptions in the ordinary course of business or of traffic, disturbances in shipment, business interruptions due to technical reasons, war, strike, lock out, insufficient delivery of operational material, adminis- trative legal measures or other similar events) to the ex- tent that A2C is not responsible for this, as well as incor- rect or late supplies being made to A2C for which A2C is not responsible. A2C must inform the Purchaser without delay of the unavailability of the service. In these cases A2C is entitled to postpone their performance, for as long as such events continue, however, up to a maximum of four months. In case of a permanent disturbance of the performance or if the disturbance lasts more than four months, A2C is entitled to withdraw from the contract ei- ther in whole or in part. In the event of withdrawal from the contract, the Purchaser is not obliged to pay any con- sideration, and any advance payments shall be paid back to the Purchaser without delay; the Purchaser is not enti- tled to claim for compensatory damages.
6. PASSING OF RISK / DEFAULT OF ACCEPTANCE
6.1 All sales are calculated ex works Obenhauptstr. 15, 22335 Hamburg. Shipping and transport shall always be at the risk of the Purchaser. The risk shall be transferred to the Purchaser, also in the case of partial deliveries, at the latest when the shipment has been handed over to the carrier - irrespective of whether it belongs to A2C or is a third party – or for the purpose of the shipment the item has already left A2C's works. The passing of risk shall also take place in the case of default of acceptance on the part of the Purchaser.
6.2 In the event that the Purchaser is in default of acceptance, A2C is entitled to claim compensation for addi- tional expenditure arising as a result or, at A2C's option, a lump sum compensation of 0,1 % of the net invoice amount for each full week of default. Any possible claims for compensation by A2C on account of culpable breach- es of (secondary) obligations by the Purchaser shall re- main unaffected.
6.3 Clause 6.2 shall apply correspondingly to the delayed calling of deliveries, to the extent that delivery on call is agreed, as well as to failure of the Purchaser to carry out any required cooperation.
6.4 During the default of acceptance by the Purchaser, A2C shall only be liable for deliberate acts and acts of gross negligence.
6.5 If at the request of the Purchaser A2C continues to store the subject matter after the acceptance date, the risk of accidental loss and accidental damage to the subject matter shall pass to the Purchaser on the originally agreed date of acceptance. During such storage period, A2C shall only be liable for deliberate acts and acts of gross negligence.
7. RETENTION OF TITLE
7.1 All products delivered shall remain A2C's property (re- tained goods) until the Purchaser has completely settled all claims existing and arising after the conclusion of the business relationship with A2C.
7.2 The Purchaser is obliged to use and handle the retained goods with care. During the period of the retention of title, the Purchaser shall be entitled to possession and con- ventional use of the retained goods.
7.2.1 Any treatment or processing of the retained goods shall take place for A2C as manufacturer within the meaning of § 950 German Civil Code, without any obligation on A2C's part. Treated and processed goods shall be deemed retained goods. If the Purchaser carries out any treatment, processing, combination or mixing of the re- tained goods with goods from another source to make a new item or mixed item respectively, A2C is entitled to co-ownership in proportion to the invoice value of the re- tained goods at the time of delivery as against the value of the other processed or mixed goods. The part that is co-owned shall be deemed to be retained goods.
7.2.2 If the retained goods are combined with other things and one of the things which belongs to the Purchaser can be regarded as the principal thing within the meaning of § 947 BGB, it is hereby agreed that a co-owned part in pro- portion to the invoice value of the retained goods as against the value of the principal thing shall be assigned to A2C and the Purchaser shall preserve it for A2C free of charge. The part that is co-owned shall be deemed to be retained goods.
7.3 The Purchaser must preserve any retained goods for A2C free of charge. Upon request at any time in the place of storage, A2C shall have the possibility of carry- ing out stock taking and sufficient labelling. The Purchas- er shall inform A2C without delay of all details of any dis- traint or derogation of A2C's rights by third parties so that A2C may use all legal means to prevent this from hap- pening.
7.4 The Purchaser may only sell the retained goods in the normal course of business under his normal conditions and under an agreement as to a retention of title, if it is guaranteed that the Purchaser’s claims under this further sale are assigned to A2C in accordance with this Clause 7.4:
7.4.1 The Purchaser hereby assigns to A2C any claims arising out of the further sale of the retained goods (as well as in the context of contracts for services or contracts for works and materials) together with all ancillary rights. These shall serve to the same extent as A2C's security for the retained goods.
7.4.2 The Purchaser is only entitled to assign claims arising out of the further sale of the retained goods to third parties with A2C's prior written consent.
7.4.3 If the Purchaser sells the retained goods together with other goods which were not supplied by A2C, the as- signment of the claims arising out of the further sale shall only be up to the value of the invoice value of A2C's re- tained goods at the time of the delivery.
In the case of the sale of goods in which A2C has co- ownership rights pursuant to Clause 7.2.1 or 7.2.2 re- spectively, the assignment of claims shall only be up to this co-owned share.
7.4.4 If the assigned claim is included in an ongoing invoice, the Purchaser shall hereby transfer a portion of the bal- ance in an amount corresponding to this claim, including the final balance, to A2C's current account.
7.4.5 Until cancellation, the Purchaser is entitled to make any claims arising out of further sales.
7.5 If the Purchaser fails to fulfil its obligations under this contract or other contracts with A2C or if A2C become aware of circumstances which reduce his credit worthi- ness, then :
(a) after the expiry of a fruitless extension of time, A2C can withdraw from the contract; then the Purchaser’s right of possession in the retained goods shall expire and A2C can demand the retained goods;
(b) A2C may prohibit the further sale, treatment, pro- cessing as well as mixing or combination of the re- tained goods with other goods;
(c) the Purchaser shall inform A2C on demand of the name of the debtor of the claims that have been as- signed to A2C;
(d) A2C is entitled to cancel the direct debit authorisation that was granted.
Any further claims of A2C, in particular claims for damag- es shall remain unaffected.
7.6 If the value of the security provided to A2C exceeds the aggregate of A2C's secured claims by more than 20 %, A2C is obliged to release security of A2C's choice to this extent at the request of the Purchaser.
8. OBLIGATIONS TO INSPECT AND IDENTIFY DEFECTS
8.1 The Purchaser must carefully inspect the goods without delay after their arrival at the destination point, in particu- lar as to condition and quantity, even if examples or sam- ples have been previously sent. Obvious defects must be notified by the Purchaser to A2C without delay at the lat- est however within 14 days. Concealed defects must be notified by the Purchaser in writing to A2C without delay at the latest however within 14 days of discovery of the defect. Any breach of this obligation to identify defects excludes a claim or rights for defects to that extent.
8.2 Damages occurring during transport must be immediately notified to the carrier; the notification obligations under the German General Conditions of Carriage shall apply to this extent.
9. LIABILITY FOR DEFECTS
9.1 Insofar as a defect exists which has been notified within the correct time limits prescribed in clause 8.1, A2C is entitled at its option to remedy the defect within a reason- able deadline by undertaking repairs or by delivering a non-defective subject matter. In the event that the remedy is ineffective, the Purchaser is entitled at its option to re- quire either a reduction in the purchase price or the can- cellation of the contract. The Purchaser has no cancella- tion rights in the case of immaterial defects.
9.2 A2C bears the expenses required for the purpose of the remedy. This does not include expenses caused by the dismounting or reinstallation of the defective subject mat- ter.
9.3 A2C does not bear such expenses which are caused because the subject matter has been brought to another place than the place of performance by the Purchaser or a third person. This does also apply if A2C delivered the subject matter to another place than the place of perfor- mance upon the Purchaser’s request.
9.4 Furthermore, A2C shall be liable for possible claims for compensation from the Purchaser arising from or in con- nection with the defects in the subject matter, exclusively in accordance with the provisions of Clause 10.
9.5 Warranty claims by the Purchaser shall be excluded, to the extent that defects are causally related to any of the following occurrences, such that :
- the Purchaser failed to provide notice of the defect and an opportunity to repair said defect without delay in ac- cordance with clause 8.1.;
- the subject matter was handled improperly or was over- used;
- the Purchaser failed to follow the prescribed require- ments regarding the handling, care and maintenance of the subject matter (e.g. those contained in the operating instructions);
- The Purchaser made changes to the subject matter;
- Parts have been changed or consumable materials were used which do not meet the original specifications if the Purchaser does not prove wrong a substantiated assertion by A2C that the defect was caused by one of the above stated circumstances.
9.6 The wear and tear according to regulation of so-called wearing parts is excluded from the liability for defects.
9.7 All warranty claims by the Purchaser shall become statute-barred within one year calculated from the begin- ning of the limitation period prescribed by statute. This shall not apply when A2C has fraudulently concealed the defect nor when strict liability on the part of A2C to pay compensation exists pursuant to Clause 10.
9.8 The sale of used goods is subject to the exclusion of any liability for defects without prejudice to the liability of A2C to pay compensation pursuant to Clause 10. Any claims of the Purchaser for fraudulent concealment of defects shall remain unaffected.
9.9 At A2C's request, the Purchaser is obliged to pursue at first all claims which come into question against A2C's pre-suppliers. For this purpose, A2C is obliged to assign to the Purchaser any possible warranty or compensation claims that A2C has against A2C's pre-suppliers. If the claim made against A2C's pre-supplier remains unsuc- cessful, the Purchaser is entitled to make a claim against A2C pursuant to this Conditions to the extent that the Purchaser then assigns back to A2C the claims for de- fects that A2C assigned to him.
10.1 Purchaser claims for damages – regardless of their legal basis for example, delays, defective delivery, breaches of binding obligations or obligations arising from contract negotiations, tortious act shall be excluded, unless man- datory liability exists. For example, this is the case in the event of injury to life, body or health as well as in the event of deliberate acts, gross negligence, or breach of essential contractual obligations, the fulfilment of which first facilitates the due implementation of the contract and upon their compliance the Purchaser may regularly rely, by A2C, their statutory representatives or employees, fur- thermore in the event of liability pursuant to the Product Liability Act or to the extent that A2C has given an ex- press guarantee (§ 443 German Civil Code) in writing as to the quality of a product or an exercise risk. An altera- tion of the burden of proof to the disadvantage of the Pur- chaser does not result from this.
10.2 The liability of A2C for gross negligence as well as negligent breaches of essential contractual obligations shall be limited to the foreseeable damage which is typical for this type of contract.
10.3 In particular, A2C shall not be liable for damages caused by the improper handling of the subject matter by the Purchaser.
10.4 Insofar as the liability pursuant to the preceding provi- sions is limited, such limitation shall also apply to the per- sonal liability of employees, workers, co-workers, repre- sentatives and assistants of A2C.
10.5 Furthermore A2C shall also not be liable for the gross negligence of its ordinary employees to the extent this does not amount to a breach of essential contractual obligations within the meaning of Clause 10.1 irrespective of any possible liability of A2C for default of its organisa- tion pursuant to Clause 10.
10.6 The Purchaser shall be obliged to give notice in writing without delay of all damages and losses for which A2C is to be held answerable.
11. JURISDICTION / APPLICABLE LAW / MISCELLANEOUS
11.1 Place of performance shall be A2C’s registered office. Place of jurisdiction shall be Hamburg. A2C is entitled to claim against the Purchaser before any other competent court.
11.2 The contractual relationship as well as any other possible tortious claims arising thereunder shall be governed en- tirely by German law excluding the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).
11.3 Any transfers of Purchaser rights and obligations arising under the contract shall require the written consent of A2C.
11.4 A2C shall be entitled to use data concerning the ex- change of purchased items and payments with the Pur- chaser in compliance with the respective data protection provisions.
11.5 All agreements are to be made in writing to the extent that there is no stricter form required by statute for the va- lidity of the provisions. Any amendments or additions to these General Terms and Conditions - including this writ- ten form requirement - shall be made in writing. The same shall apply to side letters and supplementary agreements.
11.6 Should one or more provisions of these General Terms and Conditions be, or become legally invalid or un- executable, the validity of the remaining provisions of this contract shall not be affected thereby.
12. PRIORITY CLAUSE
In the event of discrepancies between the German and the English text, the German text takes priority.
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