(1) All deliveries, services and offers of AERAVE GmbH (hereinafter referred to as “AERAVE”) shall be made exclusively on the basis of these General Terms and Conditions. These form an integral part of all contracts concluded by AERAVE with its contractual partners (hereinafter also referred to as the “Client”) for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
(2) General terms and conditions of the customer or third parties shall not apply, even if AERAVE does not separately object to their validity in individual cases. Even if AERAVE refers to a letter that contains or refers to the terms and conditions of the customer or a third party, this does not constitute an agreement to the validity of those terms and conditions.
(1) All offers made by AERAVE are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. AERAVE can accept orders or contracts within three weeks of receipt.
(2) The legal relationship between AERAVE and the customer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions. This contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by AERAVE prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract unless it is expressly stated in each case that they continue to be binding.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions of Business, must be in writing in order to be effective. With the exception of managing directors or authorised signatories, the employees of AERAVE are not entitled to make verbal agreements deviating from this. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
(4) Information provided by AERAVE on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing 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 quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) AERAVE retains the ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. The customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties or reproduce them without the express consent of AERAVE. At the request of AERAVE, the customer shall return these items to AERAVE in full and destroy any copies made if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are quoted in EURO ex works plus the applicable statutory value added tax, but without packaging, transport, insurance, customs, unloading and other possible public charges.
(2) Insofar as the agreed prices are based on AERAVE’s list prices and the delivery is to take place more than four months after conclusion of the contract, AERAVE’s list prices valid at the time of delivery shall apply (in each case less any agreed percentage or fixed discount).
(3) Invoice amounts shall be paid before delivery, without any deduction, unless otherwise agreed in writing. The date of receipt by AERAVE shall be decisive for the date of payment. If the customer fails to make payment when due, interest shall be charged on the outstanding amounts from the due date at 9% above the base rate; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.
(5) AERAVE is entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances that are likely to significantly reduce the creditworthiness of the customer and as a result of which payment of AERAVE’s outstanding claims by the customer is jeopardised.
(6) The assignment of claims against AERAVE by the customer to third parties is only permitted with our written consent.
(1) Deliveries shall be made ex works.
(2) Deadlines and dates for deliveries and services promised by AERAVE are always only approximate, 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 the transport.
(3) AERAVE may – without prejudice to its rights arising from default on the part of the customer – demand from the customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the customer fails to meet its contractual obligations towards AERAVE.
(4) AERAVE 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. AERAVE shall not be liable for impossibility of delivery or for delays in delivery caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. disruptions of operations of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which AERAVE is not responsible. Insofar as such events make it considerably more difficult or impossible for AERAVE to deliver or perform and the hindrance is not only of temporary duration, AERAVE is 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 of usually 14 days. Insofar as the customer 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 AERAVE.
(5) AERAVE is only entitled to make partial deliveries if
– the partial delivery is usable for the customer within the framework of the contractual purpose,
– the delivery of the remaining ordered goods is ensured and
– the customer does not incur any significant additional expenditure or additional costs as a result (unless AERAVE agrees to bear these costs).
(6) If AERAVE is in default with a delivery or service or if a delivery or service becomes impossible for it, for whatever reason, AERAVE’s liability for damages is limited in accordance with § 8 of these General Terms and Conditions.
(1) The place of performance for all obligations arising from the contractual relationship is “Daimler Straße.9, 47877 Willich”, unless otherwise specified.
(2) The method of dispatch and the packaging shall be subject to the dutiful discretion of AERAVE.
(3) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) 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 AERAVE has assumed other services (e.g. shipping or installation). If the dispatch or handover is delayed as a result of a circumstance the cause of which lies with the customer, the risk shall pass to the customer from the day on which the delivery item is ready for dispatch and AERAVE has notified the customer of this.
(4) Storage costs after the transfer of risk shall be borne by the customer. In the event of storage by AERAVE, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. Both contracting parties reserve the right to claim and prove further or lower storage costs.
(5) The consignment will only be insured by AERAVE against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.
(6) Insofar as acceptance is to take place, the object of purchase shall be deemed to have been accepted if
– the delivery and, insofar as AERAVE is also responsible for the installation, the installation has been completed,
– AERAVE has notified the customer of this with reference to the fiction of acceptance in accordance with this § 5 (6) and has requested acceptance,
– ten working days have passed since the delivery or installation or the customer has started to use the object of purchase (e.g. has put the delivered system into operation) and in this case ten working days have passed since delivery or installation and – the customer has refused acceptance within this period for a reason other than because of a defect notified to AERAVE.
in this case ten working days have passed since delivery or installation and
– the customer has failed to accept the goods
within this period for a reason other than a defect notified to AERAVE which makes the use of the purchased goods impossible or significantly impairs it.
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. They shall be deemed to have been approved by the customer with regard to obvious defects or other defects that would have been recognisable in the course of an immediate, careful inspection if AERAVE does not receive a written notice of defect from the customer within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if the notice of defect is not received by AERAVE within seven working days of the time at which the defect became apparent; if the defect was already apparent to the customer at an earlier time during normal use, this earlier time shall, however, be decisive for the commencement of the period for giving notice of defect. At the request of AERAVE, a rejected delivery item shall be returned to AERAVE carriage paid. In the event of a justified complaint, AERAVE shall reimburse the costs of the most favourable shipping route; this shall not apply if 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 in the items delivered, AERAVE shall first be obliged and entitled to rectify the defect or 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 customer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the fault of AERAVE, the customer may claim damages under the conditions set out in § 8.
(5) In the event of defects in components from other manufacturers which AERAVE cannot rectify for licensing or factual reasons, AERAVE shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against AERAVE shall only exist in the case of such defects under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the customer against AERAVE shall be suspended.
(6) The warranty shall lapse if the customer modifies the delivery item or has it modified by third parties without the consent of AERAVE and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
(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.
(1) AERAVE warrants 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 delay if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, AERAVE shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a licence agreement. If it 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 on the part of the client are subject to the restrictions of the
(1) AERAVE’s liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations 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) AERAVE shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item on time, its freedom from defects that impair its functionality or usability more than insignificantly, as well as advisory, protective and custodial obligations that are intended to enable the customer to use the delivery item in accordance with the contract or are intended to protect the life and limb of the customer’s personnel or to protect the customer’s property from significant damage.
(3) Insofar as AERAVE is liable on the merits for damages in accordance with § 8 (2), this liability shall be limited to damages which AERAVE foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when using the delivery item as intended.
(4) In the event of liability for simple negligence, AERAVE’s liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 2 million per case of damage, even if this involves a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of AERAVE.
(6) Insofar as AERAVE provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 shall not apply to AERAVE’s liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
(1) The retention of title agreed below serves to secure all respectively existing current and future claims of AERAVE against the customer arising from the entire business relationship existing between the contracting parties.
(2) The goods delivered by AERAVE to the customer shall remain the property of AERAVE until full payment of all secured claims. These goods are hereinafter referred to as “goods subject to retention of title”.
(3) The customer shall store the reserved goods free of charge for AERAVE.
(4) The client is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realisation (paragraph 8). Pledges and transfers by way of security are not permitted.
(5) In the event of resale of the goods subject to retention of title, the customer hereby assigns to AERAVE by way of security the resulting claim against the purchaser – in the event of co-ownership by AERAVE of the goods subject to retention of title, in proportion to the co-ownership share. AERAVE hereby accepts this assignment. The same applies to other claims that take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. AERAVE revocably authorises the customer to collect the claims assigned to AERAVE in its own name. AERAVE may only revoke this direct debit authorisation in the event of realisation.
(6) If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the customer shall immediately draw their attention to AERAVE’s ownership and inform AERAVE thereof in order to enable it to enforce its ownership rights. If the third party is not in a position to reimburse AERAVE for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable to AERAVE for this.
(7) AERAVE shall release the goods subject to retention of title and the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter shall be at AERAVE’s discretion.
(8) If AERAVE withdraws from the contract in the event of behaviour contrary to the contract on the part of the customer – in particular default of payment – (realisation event), it shall be entitled to demand the return of the reserved goods from the customer and/or to revoke the direct debit authorisation granted.
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between AERAVE and the customer shall be Krefeld. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between AERAVE and the customer shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Should individual provisions of these GTC be or become invalid, the legal validity of the remaining provisions shall remain unaffected.
(4) Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes 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 if they had known about the loophole.
(5) The Client acknowledges that AERAVE collects and stores data from the contractual relationship for the purpose of the proper performance of the same in accordance with § 28 of the Federal Data Protection Act and reserves the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the performance of the contract.
