General terms and conditions of AST Service GmbH
I. Conditions applicable to all types of business
I-1. scope of application
I-1.1 All deliveries and services (in particular construction work, services, assembly work and materials supplied in connection therewith) of AST Service GmbH (hereinafter referred to as “AST”) shall be carried out exclusively in accordance with the following General Terms and Conditions (hereinafter referred to as “Conditions”), unless expressly agreed otherwise in writing.
I-1.2 The customer’s general terms and conditions are rejected by AST and only become part of the contract if AST has expressly agreed to them in writing. The terms and conditions of AST shall also apply if AST performs the service without reservation despite being aware of conflicting or deviating general terms and conditions of the customer.
I-1.3 In addition, the terms of the VOB Parts B and C shall always apply to work contracts.
I-2. Offer, type and scope of services
I-2.1 AST’s offers are non-binding. Orders placed by the customer require written confirmation by AST in order to be valid.
I-2.2 The contents of documents and attachments belonging to the offer, such as drawings, plans, calculations or illustrations, are only binding for AST if this has been agreed in writing between AST and the customer. AST is exclusively entitled to all property rights and copyrights in the offer and all documents; offers and documents may only be used for the purpose of the execution of the contract. Passing on to third parties or duplication is not permitted.
I-2.3 The permits required for the construction and operation of AST equipment to be installed shall be obtained by the customer at his own expense.
I-3. Time of delivery and performance
I-3.1 Delivery dates are non-binding unless delivery and service times are specified separately by special written agreement. Deadlines shall not commence before all commercial and technical prerequisites for the execution of the order have been finally determined.
I-3.2 Compliance with our delivery obligation further presupposes timely and proper fulfilment of the customer’s obligation. We reserve the right to plead non-performance of the contract.
I-4. Place of performance and price, passing of risk
I-4.1 The place of performance for all deliveries shall be AST’s supplying plant, unless otherwise contractually agreed.
I-4.2 The risk passes to the customer when the goods are handed over to the freight carrier or other carrier.
I-4.3 In the case of contracts for work and services AST bears the risk until acceptance. However, the risk shall pass to the customer before acceptance if he is in default with acceptance, if the installation is interrupted for reasons for which he is responsible, or if a system installed by AST is damaged or destroyed by force majeure or other circumstances for which AST is not responsible before acceptance. In such cases, AST shall be entitled to payment for the services performed up to that point as well as compensation for any damages. The customer is obliged to provide adequate insurance cover.
I-4.4 AST’s prices apply “ex works”. The sales tax, packaging and shipping costs valid at the time of execution shall be added. The prices do not include taxes, fees, customs duties or similar charges arising outside Germany as a result of the conclusion or execution of the transaction. If AST is called upon to pay such levies, the customer shall reimburse these expenses.
I-5.1 The payment claims of AST are due upon delivery (for purchase contracts) or upon acceptance (for work contracts). Advance invoices from AST are due upon receipt. Offsetting against disputed counterclaims which have not been legally established and retention on the basis of such counterclaims are inadmissible.
I-5.2 Unless otherwise agreed, AST’s invoices shall be paid immediately upon receipt without deductions. § 16 para. 3 no. 2 and no. 4 VOB/B are excluded; a grace period according to § 16 para. 5 no. 3 VOB/B is not required to trigger the interest run.
I-5.3 In the case of an order value of more than € 10,000.00 and a delivery period of more than two months, the following payments shall apply immediately after receipt without deduction: 1/3 upon conclusion of the contract, 1/3 after expiry of half the agreed delivery period, the remainder one week after notification of readiness for dispatch or after acceptance of the service.
I-5.4 The due date shall not be affected if final services to be rendered by AST, such as commissioning or the like, are still outstanding at the time of delivery or acceptance.
I-6. Interest on maturity, default of payment
I-6.1 If the due date in accordance with Clause 5 is exceeded, default interest will be charged in accordance with § 288 Para. 2 BGB (German Civil Code). The assertion of further default damages shall remain unaffected.
I-6.2 AST is not obliged to make further deliveries under current contracts before full payment of due amounts including interest and any costs.
I-6.3 If the customer is in arrears with a due payment or if circumstances should become known which cast doubt on the creditworthiness of the customer, AST may demand immediate payment of all outstanding receivables, even if they have been deferred or security has been provided. In this case AST is entitled, without prejudice to further rights, to make outstanding deliveries only against advance payment, to demand securities or to withdraw from the contract after a reasonable period of grace or to terminate the contract extraordinarily and without notice and/or to demand damages.
I-7. Retention of title
I-7.1 AST retains title to the goods delivered by it until all payments have been received.
I-7.2 If payments are made in whole or in part against sureties or guarantees, the retention of title only expires after the return of the surety or guarantee documents.
I-7.3 If an item is connected by AST to a property, the connection is only made for a temporary purpose within the meaning of § 95 BGB (German Civil Code). In the event that the object becomes an essential component of another object as the main object, AST shall be entitled to co-ownership of the main object in the ratio of the invoice value of its goods to the invoice value or, in the absence of an invoice value, to the current value of the main object. In this respect, the customer shall store the main item for AST free of charge with due diligence.
I-7.4 The customer shall only be entitled to resell the reserved goods in the ordinary course of business subject to the proviso that the purchase price claim from the resale is transferred to AST in accordance with Sections 5.5 and 5.6. The customer is not entitled to dispose of the reserved goods in any other way. At the request of AST, the customer is obligated to notify a third party buyer of the assignment for payment to AST, to provide AST with the information required to assert its rights and to hand over documents.
I-7.5 Claims of the customer including claims from credit insurances arising from the resale of the reserved goods with all ancillary rights are hereby assigned to AST, regardless of whether the reserved goods are resold to one or more customers. If the assigned claim against one or more customers has been included in a current invoice, the agreed assignment shall also refer to the claims from the current account.
I-7.6 If the reserved goods are sold by the customer together with other goods not belonging to AST – whether without or in combination with other goods – the agreement of the purchase price claim in the amount of the invoice value of the reserved goods shall be deemed to have been agreed.
I-7.7 If the value of the securities existing for AST exceeds their claims by more than 20% in total, AST is obliged to release the excess security at the customer’s request at its discretion.
I-7.8 The customer must inform AST immediately of any impairment of AST’s property by third parties.
I-7.9 The customer must insure the reserved goods at his own expense against loss and risk at replacement value and assign all resulting claims to AST upon request.
I-7.10 If, as a gesture of goodwill, AST takes back goods delivered in accordance with the contract, AST is entitled to deduct the administrative expenses incurred when crediting the value of the goods. Page 2 of 2
I-8. Complaints about the calculation
Complaints regarding the invoicing of deliveries and services must be made in writing to AST no later than two weeks after receipt of the invoice. Failure to raise objections in due time shall be deemed as recognition of the correctness of the invoice. AST shall make special reference on the invoice to the consequences of the omission.
I-9. Rights of the customer in case of defects
I-9.1 Unless otherwise agreed below, AST shall be obliged to remedy the defect or to deliver a replacement at its own discretion within 1 year of the passing of risk, provided that the object of sale or the work is defective. In the case of VOB contracts, the possibility of extension in accordance with § 13 no. 5 sentence 3 VOB/B is excluded.
I-9.2 If the rectification of material defects or replacement delivery fails, the customer shall be entitled at his discretion to withdraw from the contract or to claim damages in accordance with the following clauses.
I-9.3 Replacement of any defects is excluded if the suitability for use is not impaired by such defects and AST is also not liable for the achievement of a specific purpose. AST shall only be liable for compliance with equipment performance under the manufacturer’s nominal conditions. Warranty claims for equipment delivered as a gesture of goodwill shall lapse completely.
I-9.4 If delivered items are handled incorrectly and/or not regularly maintained and/or technically and/or structurally modified without the written consent of AST, it is assumed that any defects are due to this.
I-9.5 With every notice of defect AST has the right to inspect and examine the goods complained of. If the inspection reveals that AST is not responsible for this defect, the customer undertakes to reimburse AST for its services (including any transport, inspection and disposal costs).
I-10.1 AST shall be liable in accordance with the statutory provisions both if the customer asserts claims for damages based on intent or gross negligence, including those of its representatives or vicarious agents, and in the event of culpable breach of a material contractual obligation. Material contractual obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely. Insofar as AST is not accused of intentional breach of contract, i.e. in the case of gross negligence and breach of an essential contractual obligation, our liability is limited to the foreseeable, typically occurring damage. The liability for financial and other consequential damages or immaterial damages is not covered by the foreseeable, typically occurring damage.
I-10.2 If AST is in default with the provision of its services, the customer shall be entitled to demand a lump-sum compensation for default amounting to a maximum of 1% of the net value of the (partial) service concerned. Any further liability for delay in delivery is excluded, except in the case of intentional action.
I-10.3 Otherwise, liability for damages is excluded. Claims arising from injury to life, limb or health shall remain unaffected.
I-11. Force majeure
In cases of force majeure, in particular war, natural disasters, acts of God, strikes, lockouts, riots, machine damage not due to improper maintenance, late or improper delivery by the upstream supplier, disruptions in the supply of energy and raw materials, AST is entitled to postpone the performance of its services for the duration of the impairment or, if an end of the impairment cannot be foreseen, to withdraw from the contract in whole or in part, without this giving rise to any obligations.
AST is entitled to commission third parties with the execution of their delivery and service obligations.
I-13. Prohibition of assignment
The customer is not entitled to transfer rights or claims to third parties or to assign them to third parties.
I-14. Legal Succession
The customer is obliged to inform AST of any change, in particular of his company name or legal form, without being requested to do so. The customer shall be liable for any disadvantages incurred by AST as a result of failure to notify or late notification.
I-15. Data protection
Customer data is stored within the framework of the Federal Data Protection Act exclusively for business purposes.
I-16. Applicable law, place of jurisdiction
I-16.1 All legal relationships between AST and the customer shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the uniform international sales law and the UN Convention on Contracts for the International Sale of Goods.
I-16.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the customer has no general place of jurisdiction in Germany, if he moves his residence or usual place of abode out of the territory of the Federal Republic of Germany after conclusion of the contract.