AWB AVIATION Aviation GmbH
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“GTC”) apply for all deliveries and performances between AWB AVIATION GmbH (hereinafter referred to as “AWB AVIATION” and “we”) and the respective Customer, to the extent that no agreements to the contrary are concluded in a contract, inclusive of annexes (hereinafter referred to as “Contract”), and the Customer is an entrepreneur (§ 14 German Civil Code).
1. Deviating stipulations and business terms of the Customer are herewith rejected, insofar as their validity has not been expressly consented to in writing. The same applies for the rescission of the written form requirement. Such an approval shall only apply for an individual case and not for previous or future deliveries or performances.
2. Order process and conclusion of contract: The order of deliveries and performances ensues by submitting a contract to manufacture or supply that has been signed by the Customer / Customer order to AWB AVIATION. An order shall be deemed to have been accepted by AWB AVIATION and the contract concluded if this is confirmed by AWB AVIATION in the form of a separate order confirmation or if confirmed by means of a signature on the order, or when AWB AVIATION has started with the delivery of the ordered performances.
3. Confidential information: AWB AVIATION and the Customer (“the Parties”) expressly agree to take all appropriate precautions to protect confidential information and know-how of the respective divulging party, at least, however, to take those precautionary measures taken by the receiving party to protect its own confidential information. Confidential information includes all information that one party has classified and marked as “confidential” and which, owing to the circumstances of disclosure, is to be classified as confidential. In addition to this, confidential information of AWB AVIATION is, apart from cost estimates, drawings and calculations that are made available to the Customer within the framework of negotiations and contract execution, also that information that is contained in the deliverables alongside the related documentation. The parties shall refrain from every form of disclosure of the confidential information of the respective other party toward third parties, be it complete or in excerpts, with the exception of employees or consultants who require the confidential information. Not considered confidential is information that was published generally and without the imposition of the obligation of confidentiality, and information that is disclosed because of judicial or legal provisions. Furthermore, AWB AVIATION and the Customer will comply with the data protection laws regarding the personal data of the respective other party, to the extent that the execution of the procedure it is based on is affected. AWB AVIATION only processes personal data for the performance of services to the extent that this is instructed by the Customer. If the Customer provides personal data for fault clearance, the Customer is responsible to ensure that the data complies with the requirements of the Federal Data Protection Act. The regulations of this subparagraph shall also continue to apply after termination of this contract.
4. Dispatch, transfer of risk and insurance: All deliveries are effected FCA AWB AVIATION Lampertheim in accordance with INCOTERMS 2010. Insurances ensue only upon request and at the expense of the Customer.
5. Delivery dates are only binding after agreement in writing. Their compliance is subject to the proper performance of all obligations to cooperate and pay on the part of the Customer.
6. Partial deliveries remain reserved, to the extent that the whole delivery is effected until the delivery date, and the partial deliveries are not unreasonable for the Customer.
7. Delayed delivery If a delivery is delayed due to unforeseen events such as force majeure, war, a natural catastrophe or other unavoidable reasons that we are not responsible for and which are outside of our sphere of influence, we are exempted from the obligation of timely delivery or performance for the duration of the disturbance. We will inform the Customer about this without delay. If the end of the disturbance is not foreseeable or when it lasts longer than two months, both sides are entitled to withdraw from the contract.
8. If the Customer desires an amendment of the ordered delivery or performance, we will endeavour to comply to the extent that this is possible; the Customer shall bear the costs caused by the amendment, in addition to the agreed upon remuneration.
9. Term of payment: All invoices are payable without deduction and in accordance with the payment terms stipulated in the contract. If no payment term was agreed, the invoices are payable without delay. If the Customer is in default with payment, default interest becomes due in accordance with the statutory regulations. The assertion of more extensive claims for damages on account of delayed performance remains unaffected.
10. The statutory value added tax on the day of issue of the invoice and the shipping cost ex AWB AVIATION Lampertheim are not included in our prices; they are stated separately on the invoice and are additionally charged to the Customer.
11. Deliveries and performances that are not agreed in the contract will be charged additionally.
12. The Customer may only offset such claims that are undisputed or have been legally established. In all cases, offsetting will require our prior permission.
13. The Customer may only assert a right of retention on the foundation of undisputed or legally established claims which arise from the same contractual relationship.
14. The Customer acknowledges that goods are possibly subject to US American and German export control laws and provisions. The Customer obliges to observe these laws and regulations at its own costs. To the extent that official authorisations are required for corresponding actions, the Customer has to obtain these in advance. To the extent that nothing else has been agreed between the parties in writing, the goods are only intended for use in the recipient country as stated in the delivery note.
15. Liability for material defects: If goods delivered by us, including standard software, should be defective, the Customer is entitled to demand supplementary performance. Whether the supplementary performance shall ensue in the form of the remedying of the defect or by providing a new item free of defects by way of replacement, lies within our discretion; also considered remedying of defects is when we point out to the Customer possibilities that are not considered unreasonable that would demonstrate ways in which the effects of the defect can be avoided. With a substitute delivery, the Customer is obliged to return to us the goods originally delivered by us.
16. In the event of refusal, failure or unreasonableness of the supplementary performance for the Customer, the Customer shall be entitled – provided the breach of contract is not minor in nature – to reduce the price or withdraw from the contract. In addition, depending on the circumstances, the Customer shall be entitled to demand compensation for damages or the reimbursement of expenses. If the Customer withdraws from the contract, he has to return the delivery object to us.
The costs of return transportation of the goods on the occasion of the supplementary performance shall be borne by the Customer.
Claims of the Customer owing to the required expenditures as a result of the supplementary performance, in particular transport costs, are excluded, to the extent that the expenditures increase because the goods were subsequently brought to another location than the place of delivery by the Customer or a third party, unless this transfer was agreed with us upon conclusion of contract.
17. In the event that a third party asserts toward the Customer that the use or possession of the object of our delivery or performance by the Customer infringes the own rights of the third party, AWB AVIATION will defend the Customer and indemnify him against these claims, provided: (a) AWB AVIATION is immediately informed regarding the assertion of such claims; (b) the Customer informs and supports AWB AVIATION in an appropriate manner for defence purposes; and (c) the Customer leaves it to AWB AVIATION, to the extent permitted by law, to conduct the dispute with the third party at its own costs, in and out of court, on its own. Arranged agreements of the Customer with the third party are only binding for AWB AVIATION if AWB AVIATION has acknowledged and accepted these in writing.
18. If, owing to a legally established infringement, the use or possession of the object of our delivery or performance is prohibited, AWB AVIATION can, at its own discretion (a) replace the object of our delivery or performance by an, in each case, different product that, in its essence, is similar to the originally delivered product as regards its functionality and performance, (b) provide the Customer a change of the product, the usage and/or possession of which no longer results in an infringement, (c) provide the Customer the right to continue using and/or possessing the affected product; or (d) to take back the affected product.
19. In the event of the previously mentioned termination of usage by the Customer, respectively the return, the Customer will be reimbursed the residual value of the fees paid by the Customer for the violating products. Here, the residual value is calculated on the foundation of the agreed and paid fee, less a compensation payment for use. The amount of the compensation for use is calculated on the foundation of a total useful life of the products of three (3) years as of the time of delivery.
20. AWB AVIATION has no warranty obligations and obligations to award damages to the extent that a defect results from one of the hereinafter listed acts and/or circumstances: (a) the Customer has specified the form, the content or the functionality of the object of our delivery or performance, its development or use that represents the legal violation, (b) the Customer or one of its representatives (with the exception of AWB AVIATION or its representatives) has changed or modified the relevant product (without approval by AWB AVIATION), (c) the relevant product was used by the Customer or a third party on behalf of the Customer in combination with other software, hardware, data or specifications not recommended by AWB AVIATION, (d) the provided fixes or modifications that would have avoided the alleged infringement of the rights of third parties and which the Customer was informed about, were not installed, (e) the Customer did not use the delivery or performance of AWB AVIATION in the proper manner.
21. Rights of the customer with defects
We must be informed regarding defects without delay and in writing, at the latest however, within one week after receipt of the goods. We are to be informed regarding defects which, also with careful inspection, cannot be discovered within this deadline, and this is to ensue in writing without delay after discovery.
In the event of entitled notices of defects, we have the right, at our discretion, to provide subsequent improvement or to replace the defective goods, and this is to ensue within a reasonable period of at least 30 days. If the subsequent fulfilment fails, the Customer can – to the extent that the lack of conformity is not only minor in nature – reduce the price or withdraw from the contract. If the Customer withdraws from the contract, he has to return the delivery item.
Claims of the Customer regarding the necessary expenditures required for supplementary performance, in particular transportation, road, labour and material costs are excluded, to the extent that the expenditures increase because the delivery item was subsequently brought to another location than the place of delivery by the Customer or a third party, unless this transfer was agreed with us upon conclusion of contract.
We are liable for damages that arise from the defectiveness of the delivery item only if we or our vicarious agents acted wilfully or with gross negligence or have violated a substantial contractual obligation. A substantial contractual obligation is an obligation, the fulfilment of which makes fulfilment of the agreement possible at all and on the observance of which the Customer may rely.
Thereby, there is no liability for damages for unforeseen, so-called excess, damages. The aforementioned limitation shall expressly not apply to the extent that an obligation violation results in liability for damages due to injuries to life, body or health.
To the extent that we have assumed a warranty for a specific quality or characteristic of the delivery item, liability limitation regulations from the previous paragraph shall not apply. Claims pursuant to the Product Liability Act remain unaffected.
We are not liable for the suitability of the goods for the purposes intended on the part of the Customer, to the extent that this purpose has not been included as an integral part of the contract. To the extent that we provide application-technical consultation, we are liable for wilful intent and gross negligence.
22. Limitation of liability, damages
Unless otherwise stated in these conditions, we shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties. The onus of proof for the one liability limitation triggering circumstance is incumbent upon us.
We shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In cases of minor negligence, we are only liable: a) for damage resulting from death, physical injury or harm to human health, b) for damage resulting from the breach of an essential contractual obligation (an obligation the proper fulfilment of which makes the fulfilment of the agreement possible at all and on the observance of which the contractual partner regularly relies and may rely). However, in this case, our liability is restricted to foreseeable and typically occurring damage.
The liability restrictions which can be derived from the aforementioned paragraph 2 shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods. Equally, the limitations of liability do not apply for claims of the Customer under product liability law.
In the event of a breach of duty which does not consist in a defect, the Customer can only withdraw from an order or part of a contract if we may be held responsible for the violation. Otherwise the statutory requirements and legal consequences shall apply.
The claim of the Customer for damages in the event of delay in delivery sets in to the extent that the delayed delivery is within our sphere of responsibility and exceeds 30 days of delivery delay, and it is limited to 5 % of the net purchase price, unless the delivery delay is caused by us through wilful intent or gross negligence.
23. Statute of limitations The general statute of limitations for claims arising from quality defects and defects of title is one year from delivery. This shall not affect special statutory provisions for the restitution of property of third parties (§ 438 par 1, subparagraph 1 of the German Civil Code) in the case of bad faith on our part and for claims regarding suppliers’ regress in accordance with § 479 of the German Civil Code.
The statute of limitations of sales contract law also applies for contractual and non-contractual claims of the Customer which are based on a defect of the goods, unless the application of the ordinary statutory limitation in accordance with §§ 195, 199 German Civil Code would result in a shorter limitation period in the individual case.
The statutes of limitation under the Product Liability Act shall remain unaffected. Apart from that, for claims for damages on the part of the Customer, the statutorily stipulated statute of limitations shall apply in accordance with subparagraph 23.
24. Reservation of title: The delivered goods remain our property until payment in full. The Customer is not entitled to pledge the goods, pledge them as security or make any other arrangements that endanger property. The Customer is obliged to inform us without delay about all accesses by third parties against goods delivered under retention of title (reserved goods),in particular regarding enforcement measures or other confiscations, and all damage entered at the reservation commodity.
25. Subcontractor: We are entitled to deploy subcontractors for all performances within the context of the contract; our liability for performance shall remain unaffected.
26. Assignment: The Customer is not entitled to assign its rights from this contract – with the exception of outstanding debts.
27. Additions or amendments of all contractual agreements must be in writing, which is also ensured in the form of e-mails and telefax letters.
28. Choice of law: The agreement is subject to German law, with exclusion of the UN Convention on Contracts for the International Sale of Goods.
29. Place of jurisdiction: Place of jurisdiction for all disputes arising under or in connection with the contract are the courts with jurisdiction in the subject matter in Darmstadt / Germany. We are, however, also entitled to use every other statutory jurisdiction.