General Terms and Conditions of Delivery of AIS.com GmbH
§ 1 Validity
(1) All deliveries, services and offers of AIS.com GmbH (hereinafter referred to as “Seller”) shall be made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as “Client”) for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
(2) Terms and conditions of the Client or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter containing or referring to the terms and conditions of the Client or a third party, this shall not constitute consent to the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers of the Seller are subject to change without notice and are non-binding, unless they are expressly characterized as binding or contain a specific acceptance period. Orders or commissions can be accepted by the Seller within (14) days of receipt.
(2) The legal relationship between the Seller and the Client shall be governed solely by the written purchase contract, including these General Terms and Conditions of Delivery. This shall fully reflect all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the Seller prior to the conclusion of this contract shall not be legally binding and verbal agreements of the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing to be valid. With the exception of managing directors or authorized representatives, the Seller’s employees are not entitled to make verbal agreements deviating from the written agreement. In order to comply with the written form, transmission by telecommunication, in particular by fax or e-mail, shall be sufficient, provided that a copy of the signed declaration is transmitted.
(4) Information provided by the Seller on the subject matter of the delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations of the same (e.g., drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary commercial deviations and deviations that occur due to legal provisions or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair usability for the contractually intended purpose.
(5) The Seller retains ownership or copyright of all offers and cost estimates it submits as well as drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids made available to the Client. The Client may not make these items available to third parties, either as such or in terms of content, disclose them, use them itself or through third parties, or reproduce them without the express consent of the Seller. At the request of the Seller, it shall return these items to the Seller in full and destroy any copies made if they are no longer required by it in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of normal data backup.
§ 3 Prices and payment
(1) The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Prices are quoted in EUR ex works plus packaging, the statutory value added tax, for export deliveries, customs duties as well as fees and other public charges.
(2) If the agreed prices are based on the Seller’s list prices and the delivery is to be made more than four months after the conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoice amounts shall be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall determine the date of payment. Payment by check is excluded, unless it is agreed separately in individual cases. If the Client fails to make payment when due, the outstanding amounts shall be subject to interest at 5% p.a. from the due date; the right to claim higher interest and further damage in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the Client or the retention of payments due to such claims shall only be permissible to the extent that the counterclaims are undisputed or have become res judicata, or arise from the same order under which the relevant delivery was made.
(5) The Seller shall be entitled to perform or render outstanding deliveries or services only in lieu of advance payment or provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Client and as a result of which the payment of the Seller’s outstanding claims by the Client under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized.
§ 4 Delivery and delivery time
(1) Deliveries shall be made ex works.
(2) Deadlines and dates for deliveries and services promised by the Seller shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier, or other third party commissioned with transportation.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Client – demand from the Client an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Client fails to meet its contractual obligations towards the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g., operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy, or raw materials, difficulties in obtaining necessary official permits, regulatory actions, or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not responsible. Insofar as such events make it significantly more difficult or impossible for the Seller to deliver or perform and the hindrance is not only of temporary duration, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Client cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to the Seller.
(5) The Seller shall only be entitled to make partial deliveries if
- the partial delivery is usable for the Client within the scope of the intended contractual purpose,
- the delivery of the remaining ordered goods is ensured, and
- the Client does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear such costs).
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
§ 5 Place of performance, shipment, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is Nördlingen, unless otherwise specified. If the Seller is also responsible for the installation, the place of performance shall be the place where the installation is to take place.
(2) The method of shipment and packaging are subject to the prudent discretion of the Seller.
(3) Risk shall pass to the Client at the latest upon handover of the delivery item (with the start of the loading process being dispositive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has assumed other services (e.g., shipping or installation). If the shipment or the handover is delayed due to a circumstance the cause of which lies with the Client, risk shall pass to the Client from the day on which the delivery item is ready for shipment and the Seller has notified the Client of this.
(4) Storage costs after transfer of risk shall be borne by the Client. In case of storage by the Seller, the storage costs shall amount to (0.25)% of the invoice amount of the delivery items to be stored per elapsed week. We reserve the right to claim and prove further or lower storage costs.
(5) The shipment shall be insured by the Seller against theft, breakage, damage from transport, fire, and water, or other insurable risks only at the express request of the Client and at the Client’s expense.
(6) Insofar as acceptance has to take place, the purchased item shall be deemed to have been accepted if
- the delivery and, if the Seller is also responsible for installation, the installation has been completed,
- the Seller has notified the Client thereof with reference to the deemed acceptance pursuant to this § 5 (6) and has requested that the Client accept the goods,
- since delivery or installation (twelve) working days have elapsed or the Client has started to use the purchased item (e.g., has put the delivered equipment into operation) and in this case (six) working days have elapsed since delivery or installation, and
- the Client has failed to take delivery within this period for a reason other than a defect communicated to the Seller which makes the use of the purchased item impossible or significantly impairs it.
§ 6 Warranty, material defects
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages of the Client arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its proxies, which shall in each case be time-barred in accordance with statutory provisions.
(2) The delivered items shall be inspected carefully immediately after delivery to the Client or to the third party designated by the Client. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the Client if the Seller does not receive a written notice of defects within (seven) working days of delivery.
With regard to other defects, the delivery items shall be deemed to have been approved by the Client if the notice of defects is not received by the Seller within (seven) working days of the time at which the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall determine the commencement of the period for giving notice of defects. At the request of the Seller, a rejected delivery item shall be returned to the Seller freight prepaid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply insofar as the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In the event of material defects of the delivered items, the Seller shall first be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e., impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Client may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the fault of the Seller, the Client may claim damages under the conditions specified in § 8.
(5) In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. In the event of such defects, warranty claims against the Seller shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g., due to insolvency. For the duration of the legal dispute, the statute of limitations for the relevant warranty claims of the Client against the Seller shall be suspended.
(6) The warranty shall not apply if the Client modifies the delivery item or has it modified by a third party without the Seller’s consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Client shall bear the additional costs of remedying the defect resulting from the change.
(7) Any delivery of used items agreed with the Client in individual cases shall be made to the exclusion of any warranty for material defects.
§ 7 Property rights
(1) The Seller warrants in accordance with this § 7 that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without undue delay if claims are asserted against it for the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at its discretion and at its expense, modify or replace the delivery item in such a way that no rights of third parties are infringed any more, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the Client by concluding a license agreement with the third party.
If the Seller does not succeed in doing so within a reasonable period of time, the Client shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages of the Client shall be subject to the limitations of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Client or assign them to the Client. In such cases, claims against the Seller shall only exist in accordance with this § 7 if the legal enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g., due to insolvency.
§ 8 Liability for damages due to culpability
(1) The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, default, defective, or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is relevant in each case.
(2) The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other proxies, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title as well as such material defects which impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations which are intended to enable the Client to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Client’s personnel or to protect the Client’s property from significant damage.
(3) Insofar as the Seller is liable on the merits for damages pursuant to § 8 (2), this liability shall be limited to damage which the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be eligible for compensation insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
(4) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees, and other vicarious agents of the Seller.
(5) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services for which the Seller is responsible, this shall be done free of charge and to the exclusion of any liability.
(6) The limitations of this § 8 shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 9 Retention of title
(1) In order to secure the Seller’s purchase price claim against the Client, the Seller shall retain title to the object of purchase (hereinafter referred to as reserved goods).
(2) If the Client is in default with the payment of the purchase price, the Seller shall have the right to withdraw from the purchase contract and to demand that the Client surrender the reserved goods.
(3) The Client is obligated to treat the reserved goods with care and to insure the reserved goods at its own expense against fire, water, and theft in the amount of the replacement value of the reserved goods. If the reserved goods are seized by third parties, the Client shall be obliged to inform such third parties of the Seller’s title and to inform the Seller immediately in writing of the seizure.
§ 10 Final Provisions
(1) If the Client is a merchant, a legal entity under public law, or a special fund under public law, or if it has no general legal venue in the Federal Republic of Germany, the legal venue for any disputes arising from the business relationship between the Seller and the Client shall be, at the Seller’s discretion, Nördlingen or Augsburg or the Client’s domicile. In these cases, however, Nördlingen or Augsburg shall be the exclusive legal venue for lawsuits against the Seller. Mandatory statutory provisions on exclusive legal venues shall remain unaffected by this provision.
(2) The relations between the Seller and the Client shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 4/11/1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, these loopholes shall be deemed to have been filled by those legally effective provisions which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had known about the loophole.
In case of doubt, the German version shall prevail.
Last revised: 07/2021
AIS.ECOM GmbH
Emil-Eigner-Strasse 1
86720 Nördlingen
Fon +49 9081 2404070
Fax +49 9081 2404073
E-mail: info@ais-e.com
AIS.ECOM GmbH
Emil-Eigner-Strasse 1
86720 Nördlingen
Fon +49 9081 2404070
Fax +49 9081 2404073
E-mail: info@ais-e.com