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General Terms and Conditions (T&Cs) of ait-deutschland GmbH

VALID FROM 01.01.2015

 

1. General

 

1.1 The following general conditions of sale, delivery and payment of ait-deutschland GmbH (hereinafter referred to as: ait) shall apply for the following business sectors and brands:

 

- ait-deutschland GmbH

- alpha innotec

- KKT chillers

- NOVELAN

 

1.2 They shall apply to merchants, companies, legal entities under public law and special funds under public law.

 

1.3 The conditions shall apply to goods and services of ait (including ancillary services e.g. proposals and consultation).

 

1.4 General purchasing conditions of the client shall be contradicted. They shall be excluded unless acknowledged in writing by ait.

 

1.5 Offers from ait are non-binding. Supply contracts and all other agreements (including ancillary agreements), as well as declarations by representatives or agents of ait shall only become legally binding upon written confirmation by ait.

 

1.6 The documents associated with offers or orders such as illustrations, drawings, weights and dimensions, etc. are only approximate unless expressly designated as binding. The client shall not be entitled to make complaints or withdraw from the order due to general design or equipment changes performed by the manufacturer. Quotations are non-binding.

 

1.7. Offers, including all documentation, shall remain the property of ait; they may not be disclosed to third parties without express written consent and must be returned to ait in the absence of an order, or reimbursed at the request of ait in accordance with applicable engineering fees. Improper use shall be liable for compensation.

 

1.8 Business correspondence printed by data processing systems (e.g. order confirmations, invoices, credit notes, account statements, payment notices) shall be legally binding, even when not signed.

 

2. Prices

 

2.1 Unless agreed otherwise, the prices are ex works and/or ex warehouse including original packaging, excluding statutory VAT.

 

2.2 Should base price changes occur before the delivery date, ait shall reserve the right to adjust the prices accordingly. However, this shall only apply to delivery periods exceeding four months and for price adjustments up to 12%. A new price agreement shall be required in the event of higher rates. If such an agreement cannot be reached, ait shall have the right to dissolve the contract within 14 days by written notice.

 

2.3 For orders that are not subject to a price agreement, the ait prices valid on the delivery date shall apply.

 

2.4 Confirmed prices shall only apply upon acceptance of the confirmed quantities.

 

2.5 Part-deliveries shall be charged separately, unless expressly agreed otherwise.

 

3. Payment conditions

 

3.1 Payments are subject to the separately agreed payment conditions.

 

3.2 Unless payment conditions have been agreed in writing, invoices shall be payable with 30 days of receipt. Payments shall only be deemed received when the sum is at the disposal of ait.

 

3.3. Provided there are no outstanding invoices and no special agreements have been made, for payments made within ten days of the invoice date or for advance payments ait shall grant a 2% discount on the net sales price of goods (excluding freight costs, insurance premiums and similar). Customer service invoices and other service invoices shall be paid immediately.

 

3.4 Payments by cheque shall only be accepted on account of payment and subject to our discretion in each individual case.

 

3.5 All payments shall first be applied to interest and costs, and to our oldest claims without consideration of any deviating stipulations of the client.

 

3.6 In the event of late payment, ait shall apply late payment interest at the statutory rate. The assertion of further claims shall not be excluded. In the event of late payment, ait shall be entitled to demand cash payment for further deliveries. If the client is in arrears with an instalment, ait shall be entitled to demand immediate payment of the residual claim. Otherwise the legal default penalties shall apply.

 

3.7 In the event of default, non-payment of cheques, cessation of payment, initiation of debt settlement proceedings, non-compliance with payment conditions or in the event of circumstances that may impair the credit rating of the client, all claims of ait shall be payable immediately, even in the event of deferment. Furthermore, ait shall be entitled to execute outstanding services only in exchange for advance cash payment, or, having established an appropriate grace period, to withdraw from the contract and demand compensation in lieu of performance.

 

3.8 The client shall only be entitled to offset claims that are undisputed or legally established. The client shall not be entitled to exert a right of retention from previous or other transactions within the current business relationship.

 

3.9 If monthly services are agreed, the following shall also apply:

 

3.9.1 If assembly costs are included in the price stipulated by ait, in any case the client must perform the relocation and connection of electricity lines to machines, switches, light sources, water supply lines and drainage systems at their own expense. The same shall apply to necessary plumbing works, painting, joinery, masonry and structural works required to prepare machine foundations, platforms or consoles. Accommodation and subsistence costs for fitters shall be payable by the client. The tendered prices shall only apply to orders of the entire system tendered, as well as for uninterrupted assembly and subsequent commissioning.

 

3.9.2 If the delivery or assembly is delayed on the part of the client, ait shall have the right to charge the additional costs incurred, the idle time of fitters and the daily expense allowances of fitters in accordance with the respective valid rates of the client. Works that are not included in the scope of delivery shall be instructed by the client and shall also be charged based on the actual wage and material shares.

 

4. Retention of title

 

4.1 All deliveries made by ait shall be subject to retention of title (reserved goods).

Ownership shall only be transferred to the client once it has settled all of its liabilities (including any ancillary receivables) from the supply of goods. The adjustment of individual claims to an open account, as well as balancing and the acceptance of such balancing, shall not affect this retention of title. In the case of an open account, the retention of title shall be deemed security for our balance claim, even where payments are made for specially designated claims.

 

4.2 Treatment and processing of goods supplied by ait, which are still the property of ait, shall always be performed on behalf of ait, without any liabilities being incurred by ait in this respect. If the goods supplied by ait are mixed or combined with other items, the client shall assign (co)-ownership of the resulting goods to ait, and shall do so in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used.

 

4.3 The client may only sell the supplied goods in the usual scope of business, and only sell or use them (e.g. as part of a work or work supply contract) provided its recipient has not excluded the assignment of claims from further sale or further use. The client shall be obligated to ensure that their recipient grants an approval reserved for assignment to us in the required form. The client shall not be permitted to pledge or commit the reserved goods.

 

4.4 Third-party access to the reserved goods must be reported to ait immediately. The client must inform ait immediately of any attachment, impending attachment, or any other third-party infringement of ownership, particularly the existence of global recessions and factoring contracts, and shall confirm the right of ownership of ait in writing both to third parties and to ait. In the event of attachments, ait must be forwarded a transcript of the attachment report immediately.

 

4.5 Should the client be in default of payment, ait shall be entitled to request the surrender of the reserved goods and ait itself or its legal representative shall take immediate possession of the reserved goods, no matter where the goods are located. The client shall be obliged to surrender the reserved goods to ait, and shall also be obliged to supply ait with the information and documentation required to exercise its rights. Any demand for the return of goods shall not constitute a withdrawal from the contract. The same shall apply for the repossession of reserved goods.

 

4.6 In order to secure all, including future, claims arising from the business relationship, the client shall assign to ait all claims against third parties (including claims from any open account) and auxiliary rights that arise from the subsequent sale and other use of the reserved goods (e.g. connection, processing, integration within a building).

 

4.7 In the event of cash re-sale, the proceeds shall take the place of the goods, whereby the proceeds must be transferred immediately.

 

4.8 If the reserved goods are sold or otherwise used, regardless of condition, together with the sale or other use of items subject to third-party rights and/or in conjunction with the rendering of services by third parties, the advance assignment shall be limited to the invoice value of ait invoices.

 

4.9 The client shall be entitled to collect the receivables assigned to ait. In the event of default, cessation of payment, application or opening of insolvency or extra-judicial insolvency proceedings or other financial deterioration of the client, ait can revoke the direct debit mandate. Upon request the client shall inform ait of the assigned claims and the corresponding debtors; provide all information required for collection; supply the associated documentation; and inform the debtors of the assignment. ait shall also have the right to inform the client’s debtors of the assignment and demand payment to ait.

 

4.10 Should the feasible value of the securities due to ait pursuant to the aforementioned provisions exceed the value of the ait receivables by more than 10%, the client shall have the right to request the release of excess security at ait’s discretion.

 

5. Delivery

 

5.1 The delivery shall be ex works and/or ex warehouse at the expense of the client, and delivered by truck to the application site, not unloaded, provided the application site is accessible via heavy goods vehicles in all weather conditions.

 

5.2 Transport route, carriage and packaging and/or other insurance shall be at the discretion of ait. The client shall assume responsibility for transportation risks in all cases. ait shall be entitled, but not obligated, to insure the deliveries on behalf and at the expense of the client.

 

5.3 If the freight costs are assumed by ait, the client must report visible transportation damages on the freight documents immediately upon delivery. Non-external transportation damages must be notified within seven days of delivery, otherwise a flawless delivery shall be assumed.

 

6. Delivery time and delivery obstacles

 

6.1 Delivery times shall be merely approximate. Delivery periods shall begin upon the date that ait confirms the order, but not before all design details are clarified and all requisite conditions for proper performance of the contract are provided by the client. The same shall apply to delivery dates. Early deliveries and partial deliveries shall be permitted. The delivery date shall constitute the day of dispatch ex works and/or ex warehouse.

 

6.2 Should the client breach its obligation to cooperate (e.g. untimely collection or refused acceptance), ait shall have the right to take the necessary measures itself and to deliver the goods or withdraw from the outstanding part of the supply contract, following fruitless expiration of a grace period. This shall not affect the right to demand damages for breach of contract and/or compensation in lieu of performance.

 

6.3 Any delivery objects not produced by ait are subject to timely and correct delivery to ait, unless the delayed or failed delivery is attributable to ait.

 

6.4 In the event of force majeure or other non-culpable impairment to our supply capacities, the delivery period shall be extended accordingly and ait shall be entitled to fully or partially withdraw from the contract. Force majeure shall include strikes, lockouts, transport obstructions, delays in the delivery of raw materials, operational interruptions or other unforeseeable circumstances unattributable to ait, which make it significantly more difficult or impossible for ait to perform the delivery. This shall also apply if these events occur when ait is in default of delivery, unless the delay is caused by intentional or gross negligence on the part of ait. This shall also apply if the aforementioned circumstances are incurred by a subcontractor.

 

6.5 In the event of expiry of the delivery period or an agreed deadline, the client shall have the right to demand clarification from ait within two weeks as regards its intention to withdraw from the contract or deliver within an appropriate grace period of at least four weeks. If no clarification is provided, the client may withdraw from the contract, insofar as performance is of no interest to it.

 

6.6 Deliveries ordered on recall must be accepted within six months of order confirmation. If acceptance is not granted, or is late or incomplete, the goods shall be stored or shipped at the expense and risk of the client; the goods shall thus be deemed accepted.

 

6.7 If installation work is agreed, the following shall also apply:

The client shall, at its own expense, conclude all necessary agreements with the building inspectorate, labour inspectorate, technical control board, electricity and water works, as well as any necessary radio and TV protective devices. Furthermore, the client shall ensure free access routes and delivery capacity to the construction site at its own expense, including installation sites of the various system components.

 

7. Redemption

 

In principle, the removal of material from deliveries shall be excluded.

 

8. Claims for defects

 

8.1 The delivery object shall be deemed free of material defects if it corresponds to the product description or, failing that, the generally accepted technical standards. Changes to the design and/or execution that neither impair the functioning nor the value of the delivery object shall be reserved and shall not give rise to a notice of defects. Damages that do not or only marginally impair the value and/or operability of the supplied delivery object shall not constitute claims for defects.

 

8.2 Guarantees for the condition and durability of the delivery object shall only be deemed accepted where ait has expressly declared the guarantee as such in writing. ait shall only be liable for public statements, particularly in advertising, insofar as ait has prompted such statements. Claims for defects based on such statements may only be asserted if the statements actually influenced the purchasing decision of the client. Guarantees provided by suppliers in guarantee declarations, relevant advertising or in other product documentation shall not be deemed prompted by ait. The suppliers that provide these guarantees shall be solely responsible in this respect. Paragraph 1 of this section shall remain unaffected.

 

8.3 Complaints for defects must be rectified immediately and shall be precluded if they do not reach ait within two weeks of receipt of delivery. Defects that could not be identified within this period, even by careful inspection, must be reported to ait immediately, but no later than two weeks after their discovery. Figure 5.3 shall remain unaffected.

 

8.4 If the delivered object is defective or does not correspond to the guaranteed quality, ait shall rectify this free of charge and within a reasonable period, either by repair or delivery of a defect-free object at its discretion (subsequent performance). The client must give ait or its representatives time and opportunity to do so. If this does not happen or if modifications or repairs are made to the defective object, ait shall be discharged from liability for the defect.

 

8.5 Should the subsequent performance fail or if it is not performed within a reasonable grace period set by the client, the client may request a reduction in payment or withdraw from the contract.

 

8.6 Client claims for expenses incurred due to subsequent performance (Figure 8.4) or rescission following withdrawal from the contract (Figure 8.5), particularly transportation costs, road costs, labour costs and material costs, shall be excluded where the expenses increase because the delivery object was installed in an inaccessible location. The same shall apply if the delivery object was installed outside the territory of the Federal Republic of Germany.

 

8.7 Damages that arise due to non-compliance with the specifications and conditions stipulated by ait as regards installation, assembly, commissioning, handling, operation or maintenance, or due to the use of improper or non-stipulated control devices, fuels, firing types, current types and voltages, due to standard wear and tear, incorrect or negligent handling, improper or unauthorised modifications or repairs performed by the client or a third party without the consent ait shall not constitute any claims for defects. The same shall apply in the event of non-compliance with VDI Guideline 2035 to prevent damage to water heating installations, overload, corrosion and in the event of damage to water/water heat pump systems due to sedimentation, as well as the use of unsuitable water, unless ait is liable for such damages in accordance with Figure 9.

 

8.8 The respective statutory warranty periods shall apply as regards the statute of limitations for claims.

 

8.9 The legal statute of limitations shall apply in the event of death, physical injury or health impairment and in the event of intentional or grossly negligent breach of obligation on the part of ait, as well as in the event of fraudulent concealment of a defect or in the event of assumption of a quality guarantee.

 

8.10 Software delivered by ait has been developed with the utmost diligence and in accordance with recognised coding rules. It shall fulfil the function described in the product description valid upon conclusion of the contract or agreed separately. The warranty shall be conditional upon the reproducibility of a defect. The client must describe these sufficiently. If the software is defective ait shall rectify this free of charge and within a reasonable period, either by repair or delivery of defect-free software at its discretion (subsequent performance).

 

8.11 Otherwise Figure 9 shall apply to claims for damages. Further claims for defects by the client shall be excluded.

 

8.12 Should ait provide planning assistance beyond its supply obligation at the special request of the client, ait shall only be liable insofar as ait corrects or replaces demonstrably erroneous planning assistance at its discretion. Any further liability for planning assistance shall be excluded, insofar as ait is not liable pursuant to Figure 9.

 

9. Liability

 

9.1 ait shall only be liable for damages and compensation of wasted expenditure (§ 284 German Civil Code) due to breach of contractual or non-contractual obligations (e.g. due to delay or unauthorised act):

 

- in the event of intent or gross negligence,

- due to culpable injury to life, body or health,

- due to fraudulent concealment of a defect or assumption of a quality guarantee or

- in accordance with German Product Liability Law for personal injuries or for material damages to privately used items

 

9.2 Furthermore, ait shall be liable for breach of major contractual obligations, also in the event of minor negligence. In this case, however, the liability shall be limited to the reasonable, foreseeable damages typical of this type of contract at the time of contract conclusion.

 

9.3 Insofar as the liability is excluded or limited, this shall also apply to the personal liability of employees, legal representatives and vicarious agents of ait.

 

9.4 No change in the burden of proof to the detriment of the client is associated with the preceding regulations.

 

10. Place of jurisdiction and place of fulfilment

 

10.1 These terms and conditions and the entire legal relationship between the company ait and the contractual partner shall be governed solely by the law of the Federal Republic of Germany.

 

10.2 The registered office of ait shall constitute the place of performance and the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

 

11. Partial invalidity

 

Should individual provisions of the agreement between ait and the client be or become ineffective or infeasible, this shall not affect the validity of the remaining provisions. Should a provision of these general terms of delivery and payment be or become ineffective or infeasible, the remaining provisions must be interpreted in such a way that takes into account the economic purpose pursued by the ineffective or infeasible provision.

 

Data protection notice

 

ait advises the client that it shall process personal data by way of electronic data processing in accordance with the provisions of the German Data Protection Act solely for business purposes e.g. processing orders, sending promotional materials and other enquiries e.g. warranty requests. As part of order processing, specific data (name, address, billing information and information about a non-contractual payment transaction by the client, where applicable) may be transmitted to credit agencies.