General Terms and Conditions for Sale and Delivery of Albach Maschinenbau AG
AMB Schlierstr. 20, DE - 85088 Vohburg-Menning
1. Scope; Deviating Terms
1.1 The following General Conditions of Sale shall only be applicable vis-à-vis entrepreneurs according to § 310 I BGB. AMB does not conclude any contracts with consumers.
1.2 The following terms and conditions exclusively apply for quotations, services and deliveries by AMB (Albach Maschinenbau AG, Vohburg). With conclusion of the first contract which shall be governed by the following terms and conditions, customer will acknowledge their validity for the whole duration of the business relationship between the parties. This especially applies to all follow-up businesses.
1.3 Purchasing conditions and other terms and conditions of the customer shall only apply if they are consistent with the following terms and conditions. Deviating terms and conditions or supplementary terms and conditions of the customer shall not become part of any contract, if AMB performs delivery and handing over to the customer without special reservation, even with knowledge of these terms and conditions.
2. Offer and Order
2.1 Offers submitted by electronical communication, in writing or orally by AMB are no offers in the legal sense but are only to be understood as invitation of the customer to order. Customer will generally receive a confirmation of receipt of his order, however, a contract is not yet concluded, even if this order confirmation contains all relevant data.
2.2 The customer shall be bound to his order for a term of 2 weeks after receipt of the order by AMB. A contract shall not come into effect when AMB issues a written order confirmation or when AMB countersigns a contract, at the latest, however, at execution of the delivery by AMB to customer.
2.3 Offers and order confirmations which are issued by AMB are always subject to a positive credit assessment of customer and subject to punctual and correct self-delivery.
3. Performance; Quality agreement, Reservation of self-delivery
3.1 For scope and time period of delivery and for the agreed quality, solely written specifications provided by AMB are relevant. Collateral agreements and changes in the contract shall only be effective in writing.
3.2 If the object of purchase is only defined by its kind and if AMB is not supplied at all, is incorrectly supplied or not supplied punctually in connection with a cover transaction concluded for fulfilment of the performance obligation, the obligation to provide performance shall lapse (reserve of self-delivery). AMB is obliged to inform the customer immediately about the non-availability of the object of purchase and to reimburse immediately a possible remuneration already received.
3.3 Any quality agreement deviating from the above-mentioned terms and conditions as well as the assumption of a guarantee for the quality of the object of purchase require the written form in order to be valid.
4. Performance deadlines; Hindrance to performance; Partial services
4.1. Delivery periods indicated by AMB are considered only as approximately agreed upon. Delivery time given by AMB shall not begin unless all technical questions have been clarified. Any delivery time given by AMB starts with the date of issuance of the relevant confirmation, however, not before customer has provided all documents, approvals, releases and has made the agreed down payment.
4.2 The agreed delivery time counts as kept, if the goods have left the warehouse or if readiness for shipment of the goods has been announced prior to expiration of the delivery term.
4.3 Late payments by customer prorogate the delivery term by the period of delay plus 14 days.
4.4 AMB’s delivery period is reasonably extended in case of force majeure (e.g. pandemics), labour dispute, fire, machine breakage, measures related to labour dispute and occurrence of unforeseeable obstacles, falling outside the responsibility of AMB, as far as such obstacles have a demonstrable impact on manufacture or delivery of the delivery item. This also applies if such circumstances occur in the premises of AMB’s subsuppliers. AMB cannot be held liable for the above-mentioned circumstances, either, if they occur during an already existing delay. AMB shall inform customer soonest possible about the beginning and the end of such obstacles.
4.5 If such hindrance to performance according to the above-mentioned paragraph lasts more than 8 weeks, AMB and the customer are entitled to withdraw from the contract in respect of those performances which have not yet been provided; withdrawal from the contract is, however, excluded prior to expiry of this period. Pre-condition for the customer’s right to withdraw from the contract is that customer has set towards AMB a reasonable performance deadline in writing including the threat to refuse performance.
4.6 Claims for damages and for reimbursement of customer’s expenses because of delay of performance or exclusion of service obligation due to delay of performance or exclusion of the obligation to perform at AMB - including the obligations which arose until withdrawal from the contract - are excluded within the framework of the above-mentioned regulation.
4.7 AMB shall be entitled to perform services prematurely and to perform partial deliveries. AMB is entitled to invoice partial deliveries immediately.
4.8 In the event of a delivery delay due to simple negligence, AMB shall be liable only up to 5% of the net invoice value concerned by the delay, in any case, however, its liability shall be limited to the foreseeable and typically accruing damage. If the delay is due to intent or gross negligence by AMB, AMB shall be liable according to the legal regulations, however limited to the foreseeable, typically occurring damage, if there is no intent or gross violation of contract for which AMB is liable. AMB shall be liable in accordance with legal regulations, as far as the underlying purchase contract constitutes a firm deal or if customer is no longer interested in further fulfilment of the contract in consequence of the delivery delay for which AMB is liable.
5. Acceptance, Passing of risk; Transport
5.1 Customer undertakes to receive the object of purchase at the agreed transfer location, within 10 days from receipt of the notification of provision, as far as this notification is made after the announced or agreed delivery date.
5.2 Transfer of goods takes place at the contractually agreed location. Unless otherwise agreed in writing, delivery ex works Langquaid (EXW Incoterms 2020) is agreed. Costs and risks related to transport as well as loading and packaging costs must be borne by the customer. The same applies for possible return deliveries. The customer is responsible for compliance with possible connection terms, for example according to the General German Forwarding Rules (ADSp).
5.3 The risk is transferred to the customer upon passing of the purchase item to the customer, however, at the latest upon passing of the purchase item to the carrier. This will also apply if partial services are rendered of if AMB has taken over additional services, such as the transport. Upon customer’s request, AMB will choose the carrier under preclusion of liability for the choice of the cheapest and quickest mode of delivery. Shipping instructions of the customer are not binding for AMB unless they have been confirmed in writing by AMB.
5.4 In the event that the customer delays acceptance of the goods or performance of the service is delayed for any other reason which the customer is responsible for, the risk shall be transferred to the customer as from the day of the notification. The customer shall bear the costs for storage at AMB’s warehouse or at third parties. The above-mentioned provision shall not affect the assertion of any further damage claim against the customer.
5.5 AMB will solely conclude a transport insurance upon special written instruction for customer’s account.
6. Assessment of goods
The customer must carefully check the goods immediately after arrival for completeness, conformity with the delivery documents and the order and for defects and he must claim obvious deviations and defects immediately in writing. In the case of agricultural machinery customer must make a test drive and a functional check. If the customer does not report a deficiency within 4 working days after receipt of the goods by customer, the delivery is considered in accordance with the contract, unless the deficiency could not be identified despite thorough and careful inspection. Moreover, transport damages or shortages which are identifiable at delivery, must be noted down on the acknowledgement of receipt according to § 438 HGB.
7. Remuneration; Terms of payment
7.1 Unless otherwise agreed in writing in the contract, any contractual claims of AMB are due for payment at the latest 10 days after conclusion of contract or at the respective agreed due dates for partial payments without any deductions. AMB is entitled to hand over the object of purchase only step by step against payment of the agreed remuneration.
7.2 Prices are to be understood net, "ex-works" (EXW Langquaid, Incoterms 2020) plus statutory value-added tax, costs for transport and packaging (unless they are listed separately).
7.3 Any payment claim is considered to be settled when AMB has received the amount due. The customer is not authorised to deduct cash discounts. Bills of exchange and cheques are only accepted on account of payment.
8. Default of payment; Purchase price financing; Damage caused by delay
8.1. In the event that the customer shall fall behind with a payment in whole or part, AMB may, notwithstanding other rights,
(1) terminate a possibly existing financing agreement or extension agreement and may declare due all outstanding debts resulting from this agreement; and
(2) to get back services from contracts which have not yet been fulfilled; and
(3) to claim the rights resulting from the agreed retention of ownership ; and
(4) to terminate the contract after granting a reasonable extension of the period.
8.2 In the event of default of payment of the customer, AMB is entitled to claim default interest to the statutory amount. AMB reserves the right to claim a higher damage caused by the delay.
9. Withdrawal; Compensation for use
9.1. AMB shall be entitled to terminate the purchase contract, if
(1) Customer does not settle a due payment at all or if customer does not settle a due payment completely within a reasonable deadline for payment; or
(2) if customer violates essential contract terms despite deadline / reminder; or
(3) if there is a significant deterioration in the customer’s financial situation, especially if distraints or other compulsory execution measures are instigated against him; or
(4) if an application to open insolvency proceedings on customer’s assets has been initiated against him; or
(5) if an application to open insolvency proceedings on customer’s assets has been advised or if the insolvency proceedings have been stopped or concluded.
9.2 In case of termination AMB is entitled to payment of a compensation for use. The amount of the compensation for use shall correspond to at least the amount of the normal market interest rate which would have been due for the time period of handing over. Assertion of any further claims for damages or for compensation of use shall remain unaffected. The amount of claims is reduced if and as far as customer proves that AMB did not incur any or incurred significantly less damage.
10. Offset, Retention
10.1 The customer can only offset a claim against claims of AMB, if its claim is undisputed or legally binding.
10.2 The customer can only claim a right to withhold performance, if the payment claim of AMB and the customer’s counterclaim are based on the same contractual relationship.
11. Claims for defects; Inspection obligation; Limitation period
11.1 AMB shall warrant for new components within the framework of the following terms, that the object of purchase is free from material defects or defects of title and that it features the contractually agreed condition. If AMB has granted a warranty for special properties or for properties of the object of purpose, the following conditions shall only apply, if the customer asserts the claims covered by the warranty against AMB and if AMB has not fulfilled the claims of the customer voluntarily or completely.
11.2 Warranty claims by the customer may only be made if customer presents upon AMB’s request a complete description of the asserted defects and, provided that the customer is a merchant in the sense of the German Commercial Code (HGB), that he has complied with his obligation of notification and rejection in accordance with § 277, 378 HGB.
11.3 Warranty claims shall not apply if the defect which has occurred is connected with the fact that
(1) previously observed defects have not been announced in time; or
(2) if the purchaser has not complied with provisions or instructions of AMB or with instruction manuals, regarding handling, maintenance, care and conditions of use; or
(3) spare parts or accessories have been installed into the object of purchase without the approval of AMB.
11.4 If there is a material defect or a defect of title, AMB shall be authorised at its own discretion to render subsequent fulfilment either by repair or by delivery of an article which is free of any defects. No claim on any specific manner of handling such subsequent fulfilment by the customer shall exist. If the purchase price has not yet been fully or partly paid, AMB is entitled to make the owed subsequent fulfilment dependent on the fact that customer pays a reasonable part of the purchase price reflecting the claimed defect.
11.5 At its own discretion the customer is entitled to demand a reduction of the purchase price or to withdraw from the contract and to claim compensation for damages instead of performance, in accordance with the provisions of the present General Terms and Conditions, if AMB seriously and definitively refuses subsequent fulfilment or if fulfilment granted by AMB has failed or is unacceptable for the customer or if customer has set to AMB a reasonable term for subsequent fulfilment without success. After an unsuccessful second attempt subsequent fulfilment is considered to have failed if nothing else arises from the type of goods or the defect or from other circumstances. Claims for damages are set out in paragraph 11.
11.6. Claims for termination of contract and compensation instead of the performance are excluded, if and insofar as the asserted defect does not limit the suitability of the object of purchase for the contractually agreed use or for the usual application in case of identical objects or if the asserted damage only limits this suitability insignificantly.
11.7 The above-mentioned customer claims for reduction of the purchase price or for withdrawal from the contract lapse within one year after remittance / delivery of the object of purchase. The same applies to an also existing customer claim for subsequent fulfilment. Processing of customer’s notice of defect by us is not equal to acceptance of the notice of defect. Processing of a notice of defect shall only lead to suspension of the period of limitation, insofar as the legal prerequisites for this are fulfilled.
11.8 For new objects of purchase, the period of limitation shall come into effect before the expiry of the period of one year, if and as soon as the installed operating hours counter indicates 1,000 operating hours. The above-mentioned conditions do not apply, if and as far as AMB has fraudulently concealed a defect.
11.9 Any further warranty for redhibitory defects or defects in title shall be excluded, if AMB has not fraudulently concealed such defects.
11.10 There is no warranty for second-hand machinery, except for damages arising out of death or injury to body or health or for damages which are based on a deliberate or grossly negligent breach of duty. Second hand purchase objects in the meaning of these terms are also replacement parts and reconditioned parts.
11.11 If the examination of a notice of defect shows that there is no redhibitory defect, we are entitled to invoice to customer an administration fee or a handling fee. In this case, the customer shall have the right to prove that the expenses incurred were much lesser than those invoiced.
12. Liability; Damages and reimbursement of expenses
12.1 Warranty claims against AMB are excluded subject to the following regulations. In particular, AMB is not liable for damages which have not been caused to the delivery item itself, for lost profits or other financial losses of the customer.
12.2 This exemption from liability shall not apply, if the damage is the result of intent or gross negligence of AMB or of one of its vicarious agents or legal representatives, or if AMB has negligently violated a substantial contractual obligation. This exemption from liability shall not apply either, if AMB has fraudulently concealed a defect or has granted a warranty regarding the quality of the goods the only purpose of which was to protect the customer against the asserted damages.
12.3. In the event of ordinary negligence, AMB’s obligation to pay compensation is restricted to the foreseeable damage, at least to the cover sum of the product liability insurance. AMB is prepared to grant the customer insight into the relevant insurance policy upon request.
12.4. Claims asserted against AMB are subject to a limitation period of 12 months counting from the date of passing the risk in the goods. This also applies for claims for the damages resulted from the defected parts, insofar as no claims relating to liability owing to fraudulent concealing of a defect deriving from an impermissible act or liability claims on the basis of malicious intent are asserted.
12.5. Any liability going beyond the liability for damages stated above - shall be excluded irrespective of the legal nature of the asserted claim. This shall not apply to injuries, death and impairments to the health, claims arising under §§ 1, 4 of the German Liability Act or for claims in tort or in case the contract cannot be fulfilled on our part.
13. Retention of title
13.1 AMB reserves ownership of the object of purpose (conditional goods) until the complete settlement of the conditional goods (extended reservation of title).
13.2 The customer undertakes to handle the conditional goods with care and in particular to conclude and to maintain at his own expense a machine insurance which also includes the risk of fire and theft. In-line with manufacturer’s instructions, the customer must carry out or have carried out at his own expense and in due time maintenance and repair work according to the service schedule issued by AMB. This work must be performed either by AMB or by a company which is approved by the machine manufacturer.
13.3 The customer is not allowed to resell, assign, mortgage, rent or transfer the conditional goods abroad, unless a prior written agreement to the contrary has been concluded with AMB.
13.4 If customer violates the provisions of paragraph 12.3 despite the setting of a deadline or receipt of a reminder or if the conditional goods are embezzled or stolen at customer’s premises or get lost under other circumstances, AMB is entitled to terminate extraordinarily a possibly existing financing and / or deferment agreement and to declare all claims resulting thereof immediately due.
13.5 The customer assigns already now to AMB all claims and claims to remuneration to which he is entitled with regard to the conditional goods (e. g. claims resulting from tortious liability, insurance claims) in the amount of the billed value of the conditional goods.
13.6 In the event of access of third parties to the conditional goods, the customer must refer to the ownership of AMB and he must inform AMB immediately in writing. If the third party is incapable to reimburse to AMB the court and out-of-court costs of a claim according to § 771 ZPO, the customer shall be liable for the loss incurred.
13.7 If the conditional goods are irreversibly combined with other items that do not belong to AMB, AMB shall acquire co-ownership of the new item in relation of the conditional commodity value at the moment of combination. If the combination is effected such that the customer’s item is to be regarded as the main item, it is hereby agreed that the customer shall transfer to AMB co-ownership on a proportional basis. The customer shall store the sole ownership or co-ownership thus created for AMB. The customer shall also assign to AMB claims against a third party that arise as a result of combination of the conditional goods with a property; AMB accepts the assignment.
13.8 If the achievable value of the securities to which AMB is entitled as a result of the retention of title exceeds the overall claim of AMB towards the customer by more than 20%, AMB shall be entitled by request of the customer to release the securities to which AMB is entitled as a result of this agreement, as far as they can be divided at their own discretion up to the given value limit.
13.9 In the event of a conduct of the customer that is not in conformity with the contract, AMB is entitled to demand the surrender of the conditional goods and to claim compensation of damages instead of the performance. AMB shall be entitled to claim the surrender of the conditional goods, without declaring withdrawal from the contract or without claiming compensation instead of performance. If customer does not meet the request to surrender the conditional goods in order to prevent destruction or loss of the goods, AMB shall be entitled to pick up the conditional goods and to enter for this purpose the place of storage or place of use of the conditional goods. The customer forgoes the rights that he would be entitled to from infringement of property rights.
13.10 If AMB claims the surrender of the conditional goods for non-payment, this is not considered withdrawal from the purchase agreement. AMB shall be entitled to liquidate the conditional goods after advance notice by sale or acquisition for the dealer purchase price that shall be based on the estimated value (fair value) determined by a publicly appointed and sworn expert. The customer shall bear liquidation costs. The proceeds from the liquidation will be offset against the customer’s liabilities, taking into account a flat rate for the costs of liquidation of 7.5%. The liquidation flat rate shall be reduced, if and insofar as the customer proves, that AMB has incurred no or a far lower damage.
14. Damages; Non-acceptance clause of goods
If the customer does not comply with his purchase obligation after the due date and despite fixing an appropriate time limit, AMB shall be entitled to claim the definitive acceptance of the goods and to use the goods differently after expiry of this time limit. AMB shall subsequently be entitled to invoice a flat compensation sum amounting of 5% of the net order value, as a so-called flat rate for the costs of realization. This flat rate for the costs of realization shall decrease if and insofar as the customer proves that no damage or only a limited damage has been incurred by AMB. The obligations resulting from the purchase agreement remain unaffected, unless AMB expressly declares withdrawal from the contract.
The assignment of any claims of the customer resulting from the business relationship against AMB, would require the consent of AMB to be effective.
16. Written form; Severability clause
16.1 Special agreements and additional agreements relating to the purchase contract shall not be valid unless given in writing. Exemptions from this written form clause are only possible if made in writing. Modifications and amendments of the present General Terms and Conditions are not valid unless they have been approved by the headquarters / Board of Directors of AMB.
16.2 Should individual terms and conditions of this contract be or become invalid, this will not affect the remaining terms and conditions of the contract; the same shall also apply if it occurs that the contract has a loophole. A fully or partially ineffective provision or a loophole shall be replaced by an appropriate provision, which, if such is legally possible, comes closest to what the contracting parties intended or would have intended based on the meaning and purpose of the contract, if they had considered this point.
17. Place of performance; Place of jurisdiction; Applicable law
17.1 Place of performance for all liabilities resulting from the contract is 85088 Vohburg (Germany).
17.2 Place of jurisdiction for all legal disputes resulting from the contractual relationship and from its origin and its effectiveness with regard to businessmen is Ingolstadt, we shall, however, be entitled to sue the customer at his registered office.
17.3 The complete contractual relationship is exclusively subject to the jurisdiction of the Federal Republic of Germany, under exclusion of the referral norms of the IPR and under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
18. Data protection
18.1. The parties undertake to comply with the applicable data protection and privacy laws, including the Federal Data Protection Act and the General Regulation of the European Union on data protection (EU regulation 2016/679), when processing personal data of the respective other party.
18.2. Should AMB process personal data when processing orders and as responsible entity on behalf of the customer and within the framework of deliveries or services, additionally to the present General Terms and Conditions additional special regulations for contract data processing shall apply, which are available under www.albach-maschinenbau.de/en/privacy
19 Export, Anti-Corruption
19.1. All products and technical know-how are supplied by AMB complying with the currently valid AWG/AWV/EG-Dual-Use regulation and the US export regulations and are intended for use and to remain in the country of delivery agreed with the customer. If the customer intends to re-export products, he is obliged to comply with US American, European and national export regulations.
19.2. The customer must inform himself about currently valid provisions and regulations. Irrespective of whether the customer indicates the final place of destination of the supplied products, it is customer’s own responsibility to obtain the necessary approval by the competent authorities for foreign trade before exporting such products. We have no duty to provide information.
19.3. Every re-exportation of products by customers to third parties, with or without our knowledge, at the same time requires the transfer of export approval conditions. The customer shall be fully liable in case of non-compliance with the applicable provisions.
19.4. Without prior approval by the competent authorities, the customer shall not be allowed to supply products directly or indirectly to countries, which are subject to an US embargo or to natural or legal persons of such countries or to natural or legal persons, which are listed on US American, European or national banned lists.
19.5. The customer is prohibited to offer a public official or person with special public service obligations a payment or another advantage for himself or for his immediate family member, in return for promising or granting to have performed or for performing in the future an official act, thus securing an improper advantage to the customer for delivery of goods or for rendering commercial services.
Status: February 2022