General Terms and Conditions
AKE GmbH Terms and Conditions of Business and Supply
Section 1 Scope of validity
The following General Terms and Conditions apply exclusively – even where they are not explicitly referred to in individual cases – to all of our offers, deliveries and services, including in particular future transactions. Any agreements to the contrary shall only be valid if we provide confirmation in writing. Any differing conditions specified by the Customer shall not apply, even if we do not explicitly reject them in individual cases.
Section 2 Offers and conclusion of contract
(1) Our offers and cost proposals are always non-binding and subject to change. Contracts shall be concluded on the basis of confirmation of an order by us in writing. Any dimensions, weights, figures and drawings, or any other specifications, shall only be binding if this is explicitly confirmed in writing. The technical details of our own products and of products in our commercial range are subject to change.
(2) The scope of an order shall be defined solely on the basis of our order confirmation. Any supplements, changes or other ancillary agreements made at a later date shall only be valid if we provide confirmation in writing.
(3) All dimensions are given in millimetres unless otherwise indicated. Tolerances are in accordance with DIN standards or with AKE works standards.
Section 3 Pricing
(1) The agreed prices are net prices in euros, and do not include packaging, shipping or insurance. Value added tax at the statutory rate shall be added to these prices.
(2) The net prices shall be calculated on the basis of the numbers of units, quantities, and weights calculated by us, unless the recipient objects without delay. The prices per unit apply for the specified standard versions. In the event of repeat orders of custom products, we reserve the right to recalculate the prices in each case.
(3) If the costs relating to an order change significantly following conclusion of the contract, the contractual partners undertake to come to an agreement on adjusting the prices. A change shall be considered to be significant if the charges change by more than 20% in each case. If the contractual partners fail to come to an agreement, we shall be entitled to withdraw from the contract within a period of two weeks following the failure of the negotiations.
(4) We shall calculate charges for tool sets consisting of a combination of tools on the basis of the price tables for individual tools. For combinations of tools that are not included in the price list, a surcharge in the amount of the cost for our standard sets shall be added to cover costs for adjustment to suit the intended function.
(5) Costs for shipping and packaging shall be calculated on the basis of the net value of the goods as invoiced by us.
The following applies for domestic deliveries: For deliveries under EUR 250.00, we add a surcharge in the amount of EUR 6.50 to cover part of the costs for shipping and packaging. For deliveries where the net value of the goods is EUR 250.00 or above, we do not charge for shipping and packaging. Additional costs for express shipping or for special packaging types or shipping methods requested by the Customer shall be borne by the Customer.
The following applies for overseas deliveries: Costs for packaging and shipping shall be calculated ex works (and are borne by the Customer).
(6) We reserve the right to charge a flat fee per transaction of EUR 20.00 for processing small orders with an invoice value of EUR 100.00 or below.
(7) We are entitled to invoice the Customer for the usual costs of a credit assessment.
(8) We charge a flat direct shipping fee of EUR 15.00 per goods shipment for sending goods to third parties.
Section 4 Terms and conditions of payment
(1) Unless otherwise agreed, the invoice amount is payable within 10 days following invoicing with a 2% discount, or within 30 days at the latest without deduction. Contracted work (e.g. repairs, servicing) is payable immediately upon invoicing without deduction. The payment periods stated above shall be considered to have been complied with if the amount payable is made available to us within these periods. Payments shall be made free of charge to our paying agent. Payment in cash to one of our business accounts shall be considered equally valid once the balance is available to us.
(2) Payment may only be offset on the basis of undisputed or legally established claims. The Customer is not entitled to a right of retention, except where this is based on the same contractual relationship.
(3) We are entitled to demand payment in instalments for services provided.
(4) Delivery of initial orders shall only be made subject to payment in advance or cash on delivery.
Section 5 Delivery
(1) Unless explicitly agreed otherwise, we dispatch deliveries from our works or from our delivery warehouse.
(2) Specified delivery dates are only considered to be non-binding guidelines, unless they are expressly designated as binding.
(3) The delivery period shall begin when the order confirmation is sent, but not before the Customer has supplied the documents, approvals and clearances to be obtained, and not before any agreed advance payment has been made.
(4) The delivery period shall be considered to have been complied with if the order item is dispatched or the Customer is notified of readiness for shipping before the delivery period elapses.
(5) Unforeseen events beyond our control (e.g. operational disruptions, strikes or lock-outs affecting us, one of our suppliers or a transportation company) shall cause the delivery time to be extended by a reasonable period. The same shall apply in the event of subsequent changes to the order.
(6) Delivery is conditional upon correct and timely delivery to us by our suppliers. Furthermore, we are entitled to change or deviate from the agreed order item if such change or deviation is reasonable for the Customer.
(7) In the event of a delayed delivery, the Customer may, after having granted us a reasonable grace period for us to fulfil the order, withdraw from the contract in respect of the part of the contract that has not been fulfilled. The Customer may only withdraw from the contract as a whole if partial fulfilment is of no interest to it.
(8) If delivery is delayed at the Customer's request or if the Customer is in default of acceptance, the Customer shall be invoiced for the resulting storage costs, starting from the calendar month following notification of provision of the order item. We are, however, entitled to otherwise dispose of the order item once a suitable period has elapsed and to provide the Customer with a new delivery within a reasonable delivery period.
(9) Orders on call shall be accepted in full within a period of three months following the order confirmation, unless otherwise agreed. Once this period has elapsed, the remaining parts of the order or, where applicable, the whole order shall be delivered at the Customer's expense. The Customer undertakes to accept the delivery. Clause (8) of this paragraph shall apply accordingly.
Section 6 Transfer of risk
(1) Risk shall be transferred to the Customer when the order item leaves our works or warehouse, regardless of whether it is transported via our own means of transportation or via third-party means of transportation.
(2) If delivery is delayed due to circumstances for which the Customer is responsible, risk shall be transferred at the point at which the Customer is notified of provision of the order item. This also applies in the event of partial delivery or where we have assumed responsibility for other services, e.g. shipping costs, transport or setting up.
(3) Unless specifically requested by the Customer, deliveries are not insured against breakage and damage in transit, fire, theft, etc. If the Customer requests that insurance be taken out, such insurance shall be at the Customer's own expense.
Section 7 Retention of ownership
(1) We retain ownership of all subjects of orders until all present and future receivables resulting from the business relationship with the Customer have been paid in full. This shall apply regardless of the legal basis and date of origin of the receivables, and therefore shall also apply to receivables resulting from bills of exchange, cheques, transfers or account balances to be settled by the Customer from an existing current account agreement.
(2) The Customer shall not pledge or collateralise any order item that is subject to retention of ownership. In the event of seizure, confiscation or other disposal of an order item that is subject to retention of ownership by a third party, the Customer shall inform us of this immediately. The Customer may only resell an order item that is subject to retention of ownership as part of proper business operations if the receivables resulting from the resale are transferred to us. In the event of resale, the Customer hereby assigns to us the receivables it acquires from the resale of any order item, including any relevant receivables resulting from bills of exchange, including all ancillary rights. In the event that an order item is sold together with other goods that do not belong to us for an aggregate price, receivables shall be assigned to us only in the amount that we have invoiced to the Customer for the order item included in the resale, including VAT. Separate declarations of assignment for each individual sale are not required.
(3) The Customer shall hold the receivables collected from the resale in trust, provided that we agree to it doing so. At our request, the Customer shall inform its own customer of the assignment of receivables, and shall also notify us that it has done so.
(4) In the event that the Customer processes, connects or mixes an order item with other items that do not belong to us, the Customer hereby transfers to us a share of co-ownership of the new item in the amount of the retail price invoiced to the Customer, including VAT. The Customer shall hold the new item in safekeeping at no cost to us.
(5) If the value of the securities accruing to us exceeds our overall receivables by more than 20%, we undertake, at the request of the Customer, to release securities of our choice to the same extent.
(6) In the event of a breach of duty on the part of the Customer, in particular in the event of a default of payment, we shall be entitled to take back the order item following withdrawal from the contract, and the Customer undertakes to hand over the order item. In this case, the Customer shall reimburse the costs accrued in taking back the order item. If items delivered and subsequently taken back by us have been used, we shall be entitled to payment corresponding to the market-standard rental price for the duration of use, as compensation for use and for loss of value incurred. However, the Customer is permitted to provide proof that no such loss or a loss lower than the flat rate has been incurred.
Section 8 Right of lien
In order to safeguard our receivables, we are entitled, on the basis of the order, to a contractual right of lien on the order item that has come into our possession.
This contractual right of lien can also be asserted to cover receivables resulting from orders undertaken previously or other services provided, insofar as these relate to the order item. We shall only be entitled to a contractual right of lien for other claims resulting from the business relationship insofar as these claims are uncontested or a legally valid claim exists, and the order item is the property of the Customer.
Section 9 Material defects/guarantee
(1) For deliveries of new items, the period in which claims for defects are valid is one year, and begins upon delivery or acceptance of the subjects of the order. Claims for defects are precluded for used items. This restriction of the limitation period (clause 1) or preclusion of claims for defects (clause 2) shall not apply to losses relating to death, injury or damage to health or to losses caused by us or our vicarious agents intentionally or through gross negligence.
(2) Obvious defects in the items themselves or in the assembly instructions, if any, incorrect delivery and incorrect quantities shall be claimed for in writing immediately upon discovery of the defect and within seven working days following receipt of the subjects of the order at the latest. If a defect as defined by this provision becomes apparent at a later point, notification of the defect must be given immediately upon discovery of the defect.
(3) If the delivered item is defective, we shall, at our discretion, rectify the defects present in the order item or replace the order item. Any replaced parts shall become our property. We shall not bear any additional costs for rectifying the defects or delivering replacements accrued as a result of the Customer having moved the order item to a location other than the original delivery location, unless this is in accordance with its intended use.
(4) If we have refused to rectify the defects or supply replacements on the basis of disproportionate costs, or if rectification of defects or delivery of replacements – which is to be repeated at least twice, if necessary – is ultimately unsuccessful or not acceptable to the Customer, the Customer may, at its discretion, demand a reduction in the remuneration or withdraw from the agreement, if the defect is substantial. Any further claims by the Customer shall be made in accordance with Section 10 (Liability).
(5) If a notification of defects proves to be unjustified, the Customer shall bear the costs arising from our efforts, at the standard rates calculated by us at this time.
(6) Guarantees regarding the quality and/or durability of the order item are only valid if we provide a written guarantee declaration.
Section 10 Liability
(1) Liability for personal injury is governed by the applicable statutory provisions.
(2) No other claims to compensation by the Customer based on infringement of our contractual or legal obligations shall be valid. In particular, we accept no liability for damage caused to the order item itself. We furthermore accept no liability for consequential damage, loss of income or any other financial losses.
(3) The above limitation of liability shall not apply where the losses in question were caused by us or our vicarious agents intentionally or through gross negligence. In cases where we have infringed essential contractual obligations, we shall also be liable for slight negligence, except where the losses in question are not foreseeable and are not typical for such a contract.
(4) If losses caused by us are not excluded by this paragraph and are merely the result of negligence, our liability shall be limited to EUR 1,500,000.00 per instance of losses and EUR 3,000,000.00 in total per calendar year, or to EUR 50,000.00 per instance of losses and EUR 100,000.00 in total per calendar year for financial losses. This limitation of liability shall not apply to personal injury (Clause 1).
(5) The right of the Customer to withdraw from the contract is not limited by the above provisions. The same shall apply to liability in accordance with the Produkthaftungsgesetz (German Product Liability Act).
Section 11 Property rights/safekeeping of documents
(1) We reserve all property rights (e.g. copyright) to our drawings, figures, sketches, samples, other documents and catalogues. The documents and samples specified above must not be distributed, reproduced or published, in whole or in part, without our consent.
(2) If the Customer provides us with documents, the Customer undertakes to take such documents back once the order has been completed. We shall retain such documents for a maximum of three months following completion of the order.
Section 12 Invalidity of individual provisions
If any individual provisions of these Terms and Conditions of Business prove to be invalid, this shall not affect the validity of the remaining provisions.
Section 13 Choice of law, place of performance and place of jurisdiction
(1) German law shall apply to all legal relationships established with us. Application of these General Terms and Conditions shall also be governed exclusively by German law. The United Nations Convention on the International Sale of Goods of 11th April 1980 (CISG) shall not apply.
(2) For business transactions with merchants, companies, corporate bodies under public law or special funds under public law, the place of performance and place of jurisdiction for both parties shall be 72336 Balingen. This shall apply to all present and future claims resulting from this business relationship, including in particular proceedings concerning bills of exchange or documentary evidence.
We shall also be entitled, at our discretion, to file suit against the Customer at its primary place of business.