General Terms & Conditions

Aukam Firmengebäude

1. General

1.1 These general Terms & Conditions are especially applicable for shipments and services to merchants, legal entities under the public law or special funds under public law. For non-merchants these conditions are applicable insofar as they are in harmony with the law.

1.2 These general Terms & Conditions are applicable for all the contractual relationships between Aukam GmbH and its contractual partners, insofar as no other contrary agreements have been made in writing.

1.3 Conflicting conditions or the conditions deviating from these Terms & Conditions by the contractual partner are not recognised by Aukam GmbH, unless their validity has been confirmed explicitly by Aukam GmbH in writing. The Terms & Conditions of Aukam GmbH and the refusal of deviating or conflicting conditions are applicable even if Aukam GmbH performs deliveries or services to the contractual partners under the knowledge of these conflicting or deviating conditions of the contractual partner.

2. Conclusion of contract

2.1 The proposals of Aukam GmbH are not binding and are subject to confirmation.

2.2 The contract is deemed as concluded, if Aukam GmbH has sent a written order acknowledgement after receiving an order from the contractual partner. The contents of written order acknowledgement are solely decisive for determining the scope of service obligation by Aukam GmbH.

2.3 Changes or modifications to the articles in the design, construction and material of the same are reserved.

2.4 Aukam GmbH reserves the right of ownership to the quotations, drawings and documents and exclusive copyright; they should not be made accessible to the Third Parties and should be handed back immediately when requested.

3. Prices

3.1 All the prices stated are exclusive of any discounts and are plus the legally applicable VAT on the invoice date. All prices are ex-works, excluding packaging and transport costs.

3.2 If there is a significant change to the factors that are decisive for the calculation of price (e.g. increase or decrease of material prices, labour costs, freight rates and customs duties), then each partner may request review of the prices through negotiations.

3.3 When articles with special dimensions or with designs deviating from the catalogue are ordered, Aukam GmbH reserves the right to demand corresponding surcharges.

4. Payments

4.1 Subject to other agreements the payment should take place along with the delivery. Aukam GmbH has the right to deliver the goods to the first-time customers only against prepayment or cash on delivery.

4.2 Aukam reserves the right to partial deliveries and invoicing the same separately.

4.3 Payments must be made irrespective of any possible obligations of the contractual partners to Third Parties.

4.4 A delay or default occurs when a warning is sent after due date, however 20 days after the receipt and due date of an invoice or similar request for payment. In case of payment delay the contractual partner has to pay interests to Aukam GmbH to the amount of 8% above the base interest rate from the due date. Aukam GmbH reserves the right to enforce a higher interest charges. Likewise enforcement of other damages is also reserved by Aukam GmbH.

4.5 Payment instructions, bills of exchange and cheques are accepted only after special written agreement and that too only in lieu of payment calculating all the collection and discount charges.

4.6 If the contractual partner does not comply with his payment obligations or circumstances that may put his creditworthiness in question are known, then all the demands from Aukam GmbH, even bill of exchange has been accepted for the same, are due immediately without any delay. In such cases Aukam GmbH has the right to make deliveries only against prepayment or surety as well as withdraw from the contract after a suitable but a maximum of 14 days or to demand compensation due to non-fulfilment. Before full payment of invoice amounts that are due including default interests and costs, Aukam GmbH is not obligated to make any further delivery from a current contract.

4.7 A right of retention is not available to the contractual partner. If he is non-merchant, right of retention is available to him only to the extent that is based on the same contractual relationship.

4.8 A compensation of the contractual partner with counterclaims is permissible only to the extent that it has been defined by Aukam GmbH as existing and recognised as due or has legal validity.

5. Delivery, Transfer of risk

5.1 Solely the delivery of the goods ordered is part of the service scope of Aukam GmbH, and not its assembly or installation.

5.2 All the details or specifications about the delivery schedules are non-binding.

5.3 Force majeure as well as inability of Aukam GmbH or its distributors to deliver which is not their fault, especially traffic and operational delays, strikes, lockouts or scarcity of material grant the right to Aukam GmbH to extend the deliveries according to its choice - either side by side or individually - by the duration of the obstruction and a suitable time, to shorten the delivery either with temporarily or permanently or withdraw from the contract due to the portion not yet fulfilled. Any claims of compensation by the contractual partner - irrespective of the legal reasons or justifications - are excluded.

5.4 14 days after expiry of a non-binding delivery schedule or a non-binding delivery deadline the buyer can request Aukam GmbH to deliver the goods within a suitable deadline. The same obligation also exists for agreements of binding delivery schedule. With this warning Aukam GmbH goes into default or delay. The buyer can demand compensation for the delay only if there is misconduct or gross negligence on the part of Aukam GmbH. In the event of the delay the buyer can set a grace period of 14 days to Aukam GmbH with the instruction that he would refuse to accept the subject matter of the contract after the expiry of such grace period. After unsuccessful expiry of the grace period the buyer has the right to withdraw from the contract through written declaration within one week or to demand compensation due to non-fulfilment of services. However this liability is restricted to a maximum of 10% of the compensation from Aukam GmbH in case of slight negligence. If the buyer is a legal entity under public law, a special fund under public law or a businessman, for whom the contract is part of operating his business, then he is entitled to compensation for damages or monetary compensation - irrespective of the legal reason or justification - only if there is a misconduct or gross negligence on the side of Aukam GmbH. The liability of Aukam GmbH is restricted to the amount that has been agreed already. The right of withdrawal by the buyer remains unchanged.

5.5 The buyer has the obligation to accept the services when delivery is completed. If the contractual partner does not accept the goods either completely or partially, then Aukam GmbH has the right to set a grace period of 14 days in writing with the declaration that it will refuse the acceptance after the expiry of such deadline. After unsuccessful expiry of the grace period Aukam GmbH has the right to withdraw from the contract through written declaration or to demand compensation due to non-fulfilment of services. It is not required to set a grace period if the buyer refuses acceptance seriously and finally or is not in a position to make the payment even within the grace period.

5.6 If Aukam GmbH demands compensation due to non-fulfilment, then such compensation shall amount to a lump sum of 25% of the agreed amount plus legally applicable VAT including an agreed or usual assembly prices. The compensation for damages may be set higher or lower, if Aukam GmbH proves a higher or the buyer proves a lower damage.

5.7 In all cases the danger passes over with the dispatch of goods from the plant to the buyer and even if the transport takes place on the vehicles belonging to Aukam GmbH. Aukam GmbH shall determine the mode of shipment and shipment route. Special instructions for the transport should be submitted by the customers in writing and are binding for Aukam GmbH only, if it has been confirmed by Aukam GmbH in writing. For the delivery of goods am entrance for a 25 ton truck should be available. Aukam GmbH is not liable for the implementation of the transport and even if the transport takes place on the vehicles belonging to the company. Insurance of the shipment against damages during transport takes place only if the buyer has authorised Aukam GmbH in writing about this and bears the costs of such insurance. Damages caused during transport should be certified by the buyer immediately after the receipt of goods from the transport company.

6. Retention of title

6.1 The delivery item shall remain the property of Aukam GmbH till the requirements to Aukam resulting from the contract are settled. The retention of title shall remain in force even for all claims, which Aukam GmbH secures against the buyer retrospectively in conjunction with the delivery items e.g. due to repairs or delivery of spare parts as well as other services. If the buyer is a legal entity under public law, a special fund under public law or a businessman, for whom the contract is part of operating the business, the retention of title is also applicable for claims, which Aukam GmbH has against the buyer from its current business relationship with him. On request from the buyer Aukam is obligated to dispense the retention of title, if the buyer has buyer has fulfilled all the claims associated with the delivery item and provides suitable surety for the other claims from the current business relationship.

6.2 During the period of retention of title the buyer has the right to possess and use the object of purchase as well as a resale within a framework of normal business, as long as he complies with his obligations from the retention of title and does not have any payments in arrears.

6.3 As long as there is the retention of title, a hypothecation, chattel mortgage, lease and other transfers of delivery item that are detrimental to Aukam GmbH as well its modification is permissible only with explicit written authorisation from Aukam GmbH.

6.4 For the collateral of the receivables by Aukam GmbH the contractual partner cedes everything, including future collaterals against Third Parties from the sales of goods in ownership or co-ownership of Aukam GmbH, to Aukam GmbH in a proportion that corresponds to the co-ownership. The contractual partner has the right and obligation to collect the collaterals or claims that are attributable to Aukam GmbH, as long as the authorisation has not been revoked. The authorisation for collection expires even without explicit revocation of the same, if the contractual partner has arrears of payment.

6.5 The contractual partner is obligated to give all the required information for the enforcement of the rights of Aukam GmbH and to handover the documents necessary for such purpose, especially the names of third party debtor and the amounts of claims, without any delay as well as inform the third party debtor about the transfer.

6.6 If the buyer is in default of payment or does not comply with his obligations from the retention of title, then Aukam GmbH can demand the object of purchase and evaluate the selling price after written announcement with suitable deadline calculating the sales proceeds. This revocation is deemed as withdrawal for the installation business of a buyer who has not been registered into the commercial register as merchant. In such case the regulations of the hire-purchase act shall be applicable. If Aukam GmbH demands the surrender of the sales objects, then the buyer is obligated under the exclusion of possible rights of retention, to surrender such objects immediately without any delay. The buyer shall bear all the costs for the revocation and the sale of the objects. The sales costs amount to 10 percent of the realisation costs plus VAT without proof. They can be set higher or lower, if Aukam GmbH proves higher costs or the buyer proves lower costs.

6.7 If the contractual partner is in default or delay of his payment obligation or violates one of the duties resulting from the agreed retention of title, then the entire residual debt is due immediately.

7. Warranty and Notice of Defects

7.1 The contractual partners have to inform Aukam GmbH in writing about any visible defects without any delay, within 8 working days after delivery of goods at the latest and such defects should be explained clearly in writing. This is also applicable for the case that an object of sales will be installed or assembled at a later point of time.

7.2 If Aukam GmbH itself takes up the installation or assembly, the defect should be notified immediately after the completion of the job. The contractual partner has the right to be present during the completion of assembly or installation.

7.3 Defects, which cannot be detected within the deadline in spite of the careful inspection, should be notified immediately in writing after the defect has been discovered and the reasons should also be stated. The same is applicable for the notification with regard to the missing of guaranteed properties or features.

7.4 If the contractual partner does not give any option to Aukam GmbH to be convinced about the defect, and if he does not provide the defective goods for the purpose of inspection without any delay, all warranty claims shall be null and void.

7.5 On request from Aukam GmbH the defect should be substantiated through photograph.

7.6 If the delivered goods or product shows a defect in spite of care taken, and if the defect was present at the time of transferring the risk, the Aukam GmbH shall improve the product or deliver replacement according to our choice subject to timely notification of defect. Always an opportunity should be given to Aukam GmbH to provide supplementary improvement or performance within a suitable deadline. The supplementary improvement or performance shall be effected only by Aukam GmbH. If the contractual partner improves or changes the products himself, he does not have claim or right to the replacement of his costs.

7.7 Aukam GmbH is entitled to three attempts for supplementary improvement.

7.8 If such supplementary improvement fails, then the contractual partner has the right to demand reduction of the amount or, if construction work is not the subject, cancellation of the contract (change).

7.9 The buyer cannot demand replacement for futile efforts.

7.10 Other claims, especially for compensation, are excluded, insofar as there has not been any misconduct or gross negligence on the side of Aukam GmbH. The scope of the compensation claim is limited to the direct damages and the amount of contract value.

7.11 For notification of defects the contractual partner has the right only to the reduced value for enforcement of right of retention.

7.12 The claims for compensation of the contractual partner are limited to the individual damaged parts. In this regard the deliveries by Aukam GmbH are deemed as partial service delivery.

7.13 For the delivery items, which are made of wood either completely or partially, no warranty is assumed for changes, which are caused by the specific property of this material (chipping, cracks).

7.14 Aukam GmbH is not liable for any foreign products. It however transfers its warrant claims against the pre-supplier of the foreign products to the contractual partner when he explicitly requests the same.

7.15 Claims to recourse by the buyer against Aukam GmbH only exist insofar as the contractual partner did not reach any agreements with its purchaser in excess of the statutory claims on account of defects.

7.16 Any kind of liability is excluded for used goods (with exception of properties or features guaranteed).

7.17 Consulting and information do not carry any warranty. The assembly instructions supplied along with the product are recommendation, and the buyer shall solely carry the risk of using it. The buyer is obligated to ensure and follow applicable DIN and EU regulation when doing assembly or installation.

7.18 When assembling the galvanised parts the contractual partner is obligated to inspect these immediately after the receipt or completion of the assembly and remove possible transport damages at the galvanised location through a professional repair. Otherwise his warranty claims are null and void.

7.19 Insofar as Aukam GmbH takes up the assembly of delivered or to be delivered goods on site, the complaint period mentioned begin with the completion of the equipment. The equipment is considered as accepted three days after the completion.

7.20 Claims on the grounds of defects are excluded in the case of only insignificant deviation from the agreed characteristics, or only insignificant impairment of the usability, or natural wear and tear, or for damage arising after the passage of risk caused by erroneous or careless handling, excessive stress, unsuitable operating substance, or which arise due to exceptional external influences not presupposed according to the contract. If any maintenance works or changes are undertaken by the buyer or Third Party in unprofessional manner, then there shall be no compensation claims for these and the consequences resulting from this.

8. Period of limitation

All the claims against Aukam GmbH expire in 24 months since delivery. This is not applicable, if the law mandates longer periods of limitation.

9. Miscellaneous

9.1 This contract and all the legal relationships of the parties are subject to the law of Federal Republic of Germany to the exclusion of UN convention on contracts.

9.2 Place of jurisdiction for all disputes from this contract shall be the headquarters of Aukam GmbH: Kassel.

9.3 Changes and additions to this contract must be made in writing. This also applicable for the changes to this written form clause. No ancillary verbal agreements have been made.

9.4 If individual conditions or regulations of this contract are ineffective or will become ineffective or have a gap, other regulations remain unaffected through this. The parties are obliged to agree valid regulations in place of the invalid regulations which economically come nearest to the invalid ones.