General Terms and Conditions of Achat Engineering GmbH, Lengede

1 Validity of the conditions

1. The deliveries, services and offers of Achat Engineering GmbH [im folgenden ACHAT genannt] are made exclusively on the basis of these terms and conditions. Counter-confirmations by the customer with reference to his terms and conditions of business or purchase are hereby rejected.

2 Offers and conclusion of contract

1. Offers contained in brochures, advertisements, etc. are subject to change and non-binding, also with regard to prices. ACHAT shall be bound by specially prepared offers for 30 calendar days from the date of the offer.
2. Subsidiary agreements, amendments, supplements and/or other deviations from these Terms and Conditions shall only be valid if ACHAT has declared its consent in this respect. Such agreements must be made in writing.
3. Statements in offers and/or order confirmations of ACHAT that are based on an obvious error, namely a typing or calculation error, shall not be binding on ACHAT. Rather, the obviously intended statement shall apply.
4. ACHAT’s offer documents, drawings, descriptions, samples and cost estimates may not be passed on, published, reproduced or otherwise made accessible to third parties without its consent. Upon request, the documents must be returned without retaining copies.

3 Prices, price changes

1. The prices do not include statutory VAT.
2. The prices do not include the costs of packaging and freight.
3. If there are more than six months between the conclusion of the contract and the agreed and/or actual delivery date, ACHAT’s prices valid at the time of delivery or provision shall apply; if the latter prices exceed the prices initially agreed by more than 10%, the Customer shall be entitled to withdraw from the contract.
4. The storage and processing of articles requires a minimum order value of €25.00.

4 Delivery times

1. Delivery dates or deadlines that can be agreed as binding or non-binding must be made in writing. They shall only be binding if an express declaration to this effect has been made by ACHAT.
2. ACHAT shall only be responsible for delays and/or the impossibility of its deliveries and services if it, its legal representatives or vicarious agents have caused the impediment to performance intentionally or through gross negligence.
   This principle shall apply in particular in the event of force majeure, strike, lockout, official orders, etc., even if the impediments occur at ACHAT’s suppliers or their subcontractors, even if the hindrances occur at ACHAT’s suppliers or their subcontractors.
   Accordingly, ACHAT reserves the right to receive correct and timely deliveries from its own suppliers.
   The duration of a grace period to be set by the Customer in the event of a delay in performance in accordance with the statutory provisions shall be set at two weeks, commencing upon receipt of the grace period by ACHAT.

5 Shipping and transfer of risk

1. The risk shall pass to the Customer as soon as the consignment has been handed over to the person carrying out the transportation or has left ACHAT’s works for the purpose of dispatch. If shipment is delayed or not carried out at the Customer’s request, the risk shall pass to the Customer upon notification of readiness for shipment.
2. At the request of the customer, deliveries will be insured in his name and for his account.

6 Warranty

1. If the service provided by ACHAT or the delivery item is defective and/or if warranted characteristics are missing and/or if a defect occurs within the warranty period due to manufacturing or material defects, ACHAT may, at its discretion and to the exclusion of other warranty claims by the Customer, supply a replacement or rectify the defect. Multiple repairs are permissible.
2. The warranty period shall commence on the date of delivery or acceptance and shall be six months, unless a longer warranty period is prescribed by law.
3. Obvious defects in work performances can no longer be claimed after acceptance. Otherwise, in order to maintain the Customer’s warranty claims, such defects must be reported to ACHAT in writing without delay, but at the latest within two weeks of delivery. The defective items must be kept ready for inspection by ACHAT in the condition in which they were at the time the defect was discovered.
4. Insignificant, reasonable deviations in the dimensions and designs – in particular in the case of repeat orders – shall not give rise to complaints unless absolute compliance has been expressly agreed. Technical improvements and necessary technical modifications shall also be deemed to be in accordance with the contract, provided that they do not constitute a deterioration in usability.
5. If ACHAT’s operating or maintenance instructions are not followed, changes are made to the products, parts are replaced or consumables are used, any warranty shall lapse if the Customer fails to refute a substantiated claim that the defect was caused by one of these circumstances.
6. Liability for normal wear and tear is excluded.
7. If the repair or replacement delivery fails after a reasonable period of time, the customer may, at his discretion, demand a reduction in the price or rescission of the contract.
8. The above provisions of this paragraph do not apply to the sale of used items. These are delivered under exclusion of any warranty.
9. If ACHAT provides the Customer with information on the use of its product over and above its statutory obligations, it shall only be liable in accordance with § 7 if a special fee has been agreed for this.

7 Limitation of liability

1. Claims for damages arising from positive breach of contract, from culpa in contrahendo and from tortious acts that are not simultaneously based on the breach of a principal contractual obligation by ACHAT shall be excluded both against ACHAT and against its vicarious agents, unless the damage was caused intentionally or by gross negligence. This shall not apply to claims for damages arising from quality warranties that are intended to protect the Customer against the risk of consequential damage caused by a defect. Claims for damages under the law on liability for defective products (PrdHG) remain unaffected.

8 Retention of title

1. Until all claims to which ACHAT is entitled against the Customer on any legal grounds have been satisfied, ACHAT shall retain title to all items delivered (reserved items).
2. The Customer shall be obliged to notify ACHAT immediately in writing of any seizure of the items subject to retention of title and to inform the pledgees of the retention of title. The Customer shall not be entitled to sell, give away, pledge or assign by way of security the items delivered to him subject to retention of title – except in the cases specified in the following clauses.
3. If the delivery is made for a business operation maintained by the Customer, the items may be resold in the ordinary course of business. In this case, the Customer’s claims against the buyer arising from the sale shall be assigned to ACHAT here and now. If the items are resold on credit, the Customer shall reserve the right of ownership vis-à-vis his customer. The Customer hereby assigns to ACHAT the rights and claims arising from this retention of title vis-à-vis his customer.
4. Any treatment or processing of the reserved goods by the Customer shall be carried out by the Customer for ACHAT free of charge. If the goods subject to retention of title are processed, combined, mixed or blended with other goods not belonging to ACHAT, ACHAT shall be entitled to the resulting co-ownership share in the new item in the ratio of the factor value of the goods subject to retention of title to the other processed goods at the time of processing, combining, mixing or blending. If the Customer acquires sole ownership of a new item, the contracting parties agree that the Customer shall grant ACHAT co-ownership of the new item in the ratio of the factor value of the processed or combined, mixed or blended reserved items and shall store it for the Supplier free of charge. If the goods subject to retention of title are resold together with other goods, regardless of whether without or after processing, combining, mixing or blending, the advance assignment agreed in Section 3 above shall only apply in the amount of the factor value of the goods subject to retention of title that have been resold together with the other goods.
5. If the goods subject to retention of title are installed by the Customer or on its behalf as essential components in the property of a third party, the Customer hereby assigns to ACHAT any claims for remuneration arising against the third party or the party concerned, together with all ancillary rights, including the granting of a security mortgage.
6. If items subject to retention of title are installed as essential components in the Customer’s property, the Customer hereby assigns to ACHAT the claims arising from the sale of the property or of property rights, together with all ancillary rights.
7. If the value of the securities existing for ACHAT in accordance with the above provisions exceeds the value of ACHAT’s claims – not only temporarily – by more than 20% in total, ACHAT shall be obliged to release securities of its choice accordingly at the Customer’s request.
8. If the Customer does not fulfill his obligations towards ACHAT or does not fulfill them punctually and/or if he interferes with the items delivered under retention of title in an inadmissible manner, ACHAT may demand the return of the items, without prejudice to its claim to fulfillment of the contract, provided that a reasonable deadline set for the Customer to fulfill his obligations has elapsed without success. If the Customer has fulfilled the contract, ACHAT shall return the items. The above provision shall not apply to installment transactions that are subject to the Consumer Credit Act.

9 Payment (see also appendix)

1. Unless otherwise agreed, ACHAT’s invoices shall be payable without deduction after invoicing.
   For deliveries with a total value of less than € 500.00, ACHAT shall deliver to first-time customers by cash on delivery plus freight and packaging.
2. ACHAT expressly reserves the right to refuse checks or bills of exchange. Acceptance shall always be on account of performance only. Discount and bill charges shall be borne by the Customer and are payable immediately.
3. If ACHAT becomes aware of circumstances that call the Customer’s creditworthiness into question, in particular if the Customer fails to honor a check or suspends payments, ACHAT shall be entitled to declare the entire remaining debt due and payable, even if the Customer has accepted checks. In this case, ACHAT shall also be entitled to demand advance payments or the provision of security.
4. If the Customer finally ceases to make payments and/or if bankruptcy proceedings are instituted against its assets or judicial or extrajudicial composition proceedings (“insolvency proceedings”) are applied for, ACHAT shall also be entitled to withdraw from the part of the contract that has not yet been fulfilled.
5. ACHAT shall be entitled to offset payments against the Customer’s older debts first, despite any provisions of the Customer to the contrary. ACHAT shall inform the Customer of this type of offsetting. If costs and interest have already been incurred, ACHAT shall be entitled to offset the payment first against the costs, then against the interest and finally against the main service.
6. If the Customer is in default of payment, ACHAT shall be entitled to charge default interest at a rate of 1% above the discount rate of the Deutsche Bundesbank applicable at the time (see Section 288 (1) BGB (new version)). ACHAT reserves the right to claim further damages caused by default. In the aforementioned cases, the Customer shall be at liberty to provide evidence of lower damages, which shall then be decisive.
7. Offsetting by the Customer shall be excluded unless the counterclaims are legally established or undisputed by ACHAT.

10 Applicable law, place of jurisdiction, partial invalidity

1. These Terms and Conditions and the entire legal relationship between ACHAT and the Customer shall be governed by the laws of the Federal Republic of Germany.
2. If the Customer is a registered trader (“Kaufmann”) within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, ACHAT’s registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

Should any provision of these Terms and Conditions be or become invalid, this shall not affect the validity of all other provisions and agreements between ACHAT and the Customer.