General Terms & Conditions
Joint General Terms and Conditions of AIDA GmbH
(as of 01/2022)
§ 1 General
(1) All deliveries and services by either AIDA GmbH (hereinafter referred to as "AIDA") shall be made and rendered exclusively on the following terms of delivery and payment.
(2) Deviating terms and conditions of the buyer are explicitly opposed hereby. Such terms and conditions shall be binding upon AIDA only if AIDA has accepted them in writing. This requirement of consent shall apply in any case, for example also in the case that AIDA effects delivery to the buyer without reservation, having full knowledge of the buyer's terms and conditions.
(3) By placing the order and accepting the goods delivered by AIDA, the buyer confirms its agreement with AIDA's terms and conditions.
(4) Legally relevant statements and notifications which the buyer is obliged to give to AIDA subsequent to entering into the contract (e. g. setting a time limit, notification of defects, statement of rescission or reduction [Minderung]) shall be made in writing in order to be valid.
§ 2 Offer and delivery
(1) All offers made by AIDA shall always be without obligation and nonbinding, unless they are explicitly described as binding or include a specific time limit for acceptance; AIDA's written confirmation of an order shall constitute the basis of the contract and determine the scope of the delivery. This shall also apply in such case that the buyer has requested a specific offer.
(2) Orders placed by the buyer shall be binding upon it. Acceptance may be stated either in writing (e. g. by confirmation of the order) or by delivering the goods to the buyer.
(3) Obvious errors, mistakes in printing, calculation, spelling and miscalculations shall not be binding upon AIDA and shall not entitle the buyer to any claims for damages.
(4) Delivery shall take place EXW Dr.-Karl-Aschoff-Str. 9 55543 Bad Kreuznach, Germany, Incoterms 2020. In case of a chain transaction in accordance with sec 3 subsection 6 sentence 5 of the German Value Added Tax Act [Umsatzsteuergesetz] delivery shall take place FCA Dr.-Karl-Aschoff-Str. 9 55543 Bad Kreuznach, Germany, Incoterms 2020.
§ 3 Export restrictions, sanctions
(1) Deliveries and services shall be under the condition that fulfilment is not restricted by any national or international regulation, particularly export control regulations and embargoes or any other sanction on the basis of German foreign trade law. The buyer is required to provide all information and documentation needed for export. Delays caused by export licensing procedures shall suspend any deadline or delivery time and shall not result in any default.
(2) If any required license will not be granted, the contract shall be considered void with respect to the relevant items. Claims for damages including consequential damages and loss of profit resulting therefrom and/or due to delays or the exceeding of deadlines in connection with licence procedures are excluded, except in case of gross negligence and/or wilful misconduct.
§ 4 Prices and payment
(1) Unless otherwise agreed, all quoted prices are given in EUROS ex works plus packaging, the statutory value added tax in effect at the time of delivery, customs duties in case of export deliveries as well as fees and other public levies.
(2) In the case of a sales shipment (§ 6 subsection 1), the buyer shall bear the shipping charges ex warehouse and the expenses of transport insurance which the buyer may have requested. Transport and any other packaging materials in accordance with the German Regulation on Packaging [Verpackungsverordnung] shall not be taken back by AIDA, they shall become the property of the buyer; pallets shall be excluded.
(3) Unless otherwise agreed, the purchase price shall be due and payable within 14 days from invoice date and delivery or acceptance of goods respectively.
§ 5 Time of delivery, delay in delivery
(1) The delivery period shall be stipulated individually or specified by AIDA upon acceptance of the order respectively.
(2) If AIDA is unable to adhere to binding delivery periods for reasons which AIDA is not responsible for (nonavailability of performance), AIDA shall, without delay, inform the buyer hereof and, at the same time, of the expected new delivery period. Should the performance be unavailable within the new delivery period either, then AIDA shall be entitled to withdraw from the contract in whole or in part; a consideration already made by the buyer shall be reimbursed by AIDA without delay. As used here, a case of non- availability of performance shall in particular be AIDA's delayed receipt of supplies from its own subcon- tractors if AIDA has concluded a matching cover transaction and no fault can be attributed to either AIDA or its subcontractors, or in case AIDA is under no obligation for the procurement in a particular case.
(3) The occurrence of AIDA's delayed delivery is governed by sec 286 of the German Civil Code [Bürgerliches Gesetzbuch, “BGB”] . In each case, however, a reminder by the buyer shall be mandatory. If AIDA is delayed with its delivery, the buyer may claim a flat-rate compensation for its damage caused by the delay. For each completed calendar week of the delay, the flat-rate compensation for damage shall be 0.5 % of the net price (declared value of goods), altogether, however, not exceed 5 % of the declared value of the goods delivered with delay. AIDA shall reserve the right to evidence that the buyer has not incurred a loss at all or only a loss substantially less significant than the above-mentioned lump sum amount.
(4) The rights of the buyer pursuant to § 10 and the statutory rights of AIDA, in particular in the case that the obligation to perform a contract is excluded (e. g. based on impossibility or hardship of performance and/or supplementary performance), shall remain unaffected.
§ 6 Delivery, passing of risk
(1) Delivery shall be affected ex warehouse, which also constitutes the place of performance. Upon request and at the buyer’s expense, the goods shall be delivered to a different destination (sales shipment). In such case, AIDA itself shall determine the type of shipment (in particular carrier, shipping route, and packaging).
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer no later than at the time of handing over. In the case of a sales shipment, the risk of accidental loss or accidental deterioration of the goods, as well as the risk of delay shall pass already at the time of delivering the goods to the forwarding agent, carrier, or the person otherwise designated to effect shipment. This shall also apply if AIDA assumes the shipping charges in individual cases. Insofar as an acceptance has been agreed upon, such shall then be decisive for the passing of risk. Furthermore, the statutory regulations of sec 640 of the BGB shall apply to agreed acceptances, respectively. The buyer's default of acceptance shall be considered equivalent to the delivery of goods or acceptance respectively.
§ 7 Retention of title
(1) Until all of AIDA's present and future receivables arising out of the sales contract and current business relations (secured receivables) have been paid in full, AIDA shall retain title to the goods sold.
(2) Goods delivered under retention of title may neither be pledged to third parties nor assigned by way of security prior to the full payment of the secured receivables. The buyer shall inform, without delay, AIDA in writing if and to the extent to which third parties have access to goods owned by AIDA.
(3) In the case of the buyer's breach of contract, in particular by non-payment of the purchase price due, AIDA shall have, pursuant to sec 323 of the BGB, the right to rescind the contract and, based on the retention of title and rescission, to demand the return of the goods. If the buyer does not pay the purchase price due, AIDA may assert these rights only if AIDA has previously unsuccessfully given the buyer a reasonable time limit for payment, or if setting of such a time limit is dispensable under the applicable statutory provisions.
(4) The buyer shall be entitled to resell and/or process the goods delivered under retention of title in the proper course of business. In this case, the following provisions shall additionally apply.
a) The retention of title shall cover the products that result from processing, mixing or combining the goods from AIDA at their full value, with AIDA being considered the manufacturer. If upon processing, mixing or combining goods of a third party the latter's ownership continues to exist, then AIDA shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Besides, the same conditions as for the goods delivered under retention of title shall apply for the resulting product.
b) Claims against third parties arising out of the resale of the goods or the product shall hereby be assigned as security by the buyer to AIDA, in total or in the amount of AIDA's possible co-owner's share respectively, pursuant to the above-mentioned subsection. AIDA hereby accepts the assignment. The obligations of the buyer set out in subsection 2 shall apply with regard to the assigned claims, as well.
c) Aside from AIDA, the buyer shall remain authorized to collect the receivables. AIDA undertakes nothing to collect the receivables, as long as the buyer meets its financial obligations owed to AIDA, does not default on payments, no application for the opening of insolvency proceedings has been made, and no other financial incapacity exists. Should this be the case, however, AIDA may then demand that the buyer discloses the assigned claims and their debtors, furnishes all information necessary for the collection, hands over the appropriate records, and informs the debtors (third parties) of the assignment.
d) If the realizable value of the securities exceeds AIDA's claims by more than 10 %, AIDA shall release, upon the buyer's request, securities of AIDA's choice.
§ 8 Claims based on defects
(1) In the case of material defects and defects in title (including wrong and short delivery as well as improper installation or faulty installation instructions), secs 434 et seq of the BGB shall apply to the buyer's rights, unless otherwise stated below. The statutory special provisions on final delivery of goods to a consumer (supplier recourse pursuant to secs 478, 479 of the BGB) shall remain unaffected in all cases.
(2) AIDA's liability for defects is first and foremost based on the agreement reached on the quality of the goods. As agreement on the quality of the goods shall be considered the product specifications named as such (also those of the manufacturer), which were made available to the buyer before its order placement or were included in the contract in the same way as these terms and conditions. Customary deviations and deviations which occur based on legal provisions or which represent technical improvements shall be permissible insofar as they do not interfere with the use for the purpose intended under the contract.
(3) If, beyond the provisions in § 9 subsection 2, the quality has not been agreed upon, the applicable statutory provisions shall determine whether or not a defect exists (sec 434 subsection 1 sentence 2 and 3 of the BGB). AIDA however shall not assume any liability for public comments by the manufacturer or other third parties (e. g. advertising statements).
(4) The buyer's claims arising from defects presuppose that the buyer has met its statutory duties to inspect the goods and to give notice of defects (sec 377 of the German Commercial Code [Handelsgesetzbuch, HGB]). If a defect is detected during inspection or subsequently, then AIDA shall be notified hereof in writing without delay. The notification shall be considered to be without delay if it is given within two weeks, whereupon the timely dispatch of the notification shall suffice for meeting the deadline. Irrespective of this duty to inspect the goods and to give notice of defects, the buyer, within two weeks of delivery, shall give notice of obvious defects (including wrong and short delivery) in writing, whereupon too, the timely dispatch of the notification shall suffice for meeting the deadline. If the buyer omits the proper inspection and/or notice of a defect, AIDA's liability for the unreported defect shall be excluded.
(5) If the delivered goods are defective, the buyer may initially, at its choice, request as supplementary performance the removal of the defect (subsequent improvement) or delivery of goods free of any defect (substi tute delivery). If the buyer does not state which of the two options the buyer chooses, AIDA may then set a reasonable time limit for the buyer to do so. If the buyer does not choose an option within the time limit, the option shall pass to AIDA.
(6) AIDA shall be entitled to make the supplementary performance owed contingent upon the buyer paying the purchase price due. The buyer shall be entitled, however, to withhold a reasonable part of the purchase price in proportion to the defect.
(7) The buyer shall give AIDA the time and opportunity necessary for the supplementary performance owed in particular make the rejected goods available for the purpose of examination. In the case of a substitute delivery, the buyer shall return the defective goods to AIDA pursuant to secs 439 subsection 5, 346 to 348 of the BGB. The supplementary performance shall neither include the removal of the defective goods nor the renewed installation if the installation originally was not AIDA's duty.
(8) The expenses necessary for the purpose of examination and supplementary performance, in particular costs of transportation, infrastructure, labor and materials shall be borne by AIDA if a defect does actually exist. Should the buyer's demand for the defect removal turn out to be unjustified, however, AIDA may demand that the buyer reimburses the costs resulting therefrom.
(9) In urgent cases, e. g. in the event of operational safety being jeopardized or for averting disproportionate damages, the buyer shall have the right to remove the defect itself and to request compensation from AIDA for the expenses objectively necessary for this purpose. In the case of such self-help measures, the buyer shall notify AIDA immediately, if possible prior to taking any such measures. The right of self-help shall not exist if AIDA were entitled to refuse a corresponding supplementary performance pursuant to the applicable statutory provisions.
(10) If the supplementary performance has failed, or a reasonable time limit for a supplementary performance to be set by the buyer has expired without any success, or is dispensable pursuant to applicable statutory provisions, the buyer may rescind the sales contract or reduce [mindern] the purchase price. In the case of an insignificant defect, however, the right of rescission shall not exist.
(11) The buyer's claims for damages and compensation for futile expenses respectively shall exist only in accordance with § 10 and shall be excluded in all other respects.
§ 9 Liability
(1) AIDA shall be liable for damages - regardless of the legal ground - in the case of intent and gross negligence. In the case of simple negligence, AIDA shall be liable only
a) for damages resulting from death, injury to body and health,
b) for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose adherence the contracting party regularly relies on and may rely on); in this case, however, AIDA's liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(2) The limitation on liability resulting from subsection 2 shall not apply if AIDA has fraudulently concealed a defect or has guaranteed the quality of the goods. The same shall apply to claims of the buyer pursuant to the German Product Liability Act [Produkthaftungsgesetz].
(3) Due to a breach of duty that does not consist in a defect, the buyer can withdraw from or terminate the contract only if AIDA is responsible for the breach of duty. A free right of termination for the buyer is excluded. Besides the statutory prerequisites and legal consequences shall apply.
§ 10 Limitation
(1) Deviating from sec 438 subsection 1 No. 3 of the BGB, the general limitation period is one year from delivery for claims based on material defects and defects in title. If an acceptance has been agreed upon, the limitation period begins upon acceptance.
(2) The above-mentioned limitation period shall also apply to those contractual and non-contractual compensation claims of the buyer based on a defect of the goods, unless, in individual cases, the application of the regular statutory limitation pursuant to secs 195, 199 of the BGB would lead to a shorter limitation period. The limitation periods of the product liability law shall remain unaffected in any case. Otherwise, to damage claims by the buyer pursuant to § 10, the limitation periods acc. to secs 195 et seq of the BGB shall apply exclusively.
§ 11 Venue
For all disputes arising out of the contractual relationship, venue shall be Bad Kreuznach if the buyer is a merchant entered as such in the Commercial Register [Vollkaufmann], a legal person under public law, a special fund under public law, or has its residence or business head office outside of the Federal Republic of Germany. AIDA shall also have the right to take legal action at the place of the buyer's business head office.