Terms and Conditions
AWR Inhalation GmbH
- hereinafter called “AWR” -
1. Validity of the Terms and Conditions
1.1. The deliveries, performance and offers of AWR shall be based exclusively on these Terms and Conditions. These then apply to all future business relationships, even if they are not expressly agreed upon again. Any counter-confirmations by the purchaser with reference to own general terms and conditions or own conditions of purchase are hereby expressly rejected.
1.2. All agreements that are concluded between AWR and the purchaser for the purposes of executing this contract are to be set in writing.
2. Offers and Contract Signing
2.1. The offers by AWR are subject to change and non-binding, conditionally upon the rules set forth in section 2. Declarations of acceptance and all orders require written confirmation or confirmation by telex from AWR in order to take legal effect.
2.2. Drawings, images, dimensions, weights and other performance data are only binding if they have been expressly agreed in writing.
3.1. The prices include the value added tax at the applicable statutory rate. Additional customs duties, taxes, and fees may be payable for shipment deliveries in countries other than the Federal Republic of Germany, are not included in the prices and are payable by the purchaser.
3.2. The prices are quoted – unless otherwise agreed in written form – excluding shipping costs, conditionally upon clause 5, section 2.
3.3. If a period of more than six months is between the conclusion of the agreement and the agreed and / or actual delivery date, those prices of the AWR shall apply which are valid at the time of delivery or provision. If the latter prices exceed the prices agreed upon first by more than 10 %, the purchaser is entitled to withdraw from the contract.
4. Period of Delivery and Performance
4.1. Delivery deadlines, which may be agreed upon as binding or unbinding, must be stipulated in writing.
4.2. In every case, the delivery periods only start with confirmation of the purchaser’s order by AWR. They may be extended by the period that the purchaser requires to deliver or provide AWR with all details and documents required for AWR to fulfill the order.
4.3. Delays in deliveries and services due to force majeure and events significantly impairing or rendering the delivery impossible for AWR – not just on a temporary basis – this includes in particular strikes, lockouts, official ordinances etc., also if they take place at supplier locations of AWR or their sub-suppliers, shall not be answerable by AWR, even in the case of delivery periods and deadlines which were agreed upon in a binding manner. Such events entitle AWR to postpone the delivery or service by the period of the delay plus a reasonable starting period or to or to cancel the contract wholly or in part in respect of the part of the contract not yet performed.
4.4. If the obstruction lasts for more than one month, the purchaser is authorized to cancel the agreement with regard to the part of the service not yet performed, after having granted a reasonable extension of time. In the event the delivery period is extended or in the event AWR is released from the obligation, the purchaser shall not be entitled to any claims for damages. AWR can only refer to the abovementioned circumstances if the purchaser is notified immediately.
4.5. Observance of delivery and performance obligations by AWR depends on the timely and correct fulfilment of the purchaser's obligations.
5. Conditions of Delivery
5.1. AWR is at any time entitled to partial deliveries and performances in part, unless the partial delivery or performance is without use for the purchaser. Post-deliveries shall be sent free of charge.
5.2. The following conditions apply to delivery costs and their payment:
When purchasing via the web page of AWR: Dispatch will be executed ex works, freight collect, and pre-payable by bank transfer or credit card payment. AWR is free to select the appropriate carrier. Delivery charges are:
For all other orders, delivery and payment of the charges are based on a separate written agreement.
6. Risk Transfer and Acceptance Delays
6.1. If the purchaser is a consumer, the risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser with handing over the goods. Handover is equal to acceptance delays on the part of the purchaser (see section 6.3).
6.2. In the event that the purchaser is a company, the risk passes to this company as soon as the goods have been handed over to the company or to an authorized recipient, in case of the purchase to destination, upon the delivery of the goods to the forwarding agent or when the shipment has left the works of AWR for transport. If the shipment is delayed at the request of the purchaser, the risk shall transfer to the purchaser with the notification of readiness for shipment.
6.3. If the purchaser is in default of acceptance, AWR shall be entitled to demand compensation for the loss in the amount of 15% of the net purchase price of the good not yet accepted. AWR is entitled to prove a higher loss; the purchaser is entitled to prove that AWR has suffered no loss or a significantly lesser loss. With the beginning of the default of acceptance, the risk of accidental deterioration and of accidental loss passes to the purchaser.
7. Rights of the Purchaser in Case of Deficiency
7.1. In the event that the delivered item does not have the agreed properties or is unsuitable for the use set forth contractually or the envisaged general use or does not have the features that were expected according to what has been openly said by AWR, AWR will fundamentally guarantee to correct such faults by providing subsequent delivery of error free items. Multiple rectifications shall be permitted. If attempts to rectify the situation fail twice, the purchaser may, if he so chooses, reduce the purchase price by a reasonable amount or withdraw from the contract.
7.2. In the case that the purchase is a commercial transaction for the purchaser as well, the paragraphs 377 and 378 of the HGB (Obligation of the Purchaser to Inspect the Goods and Lodge Complaints) apply, subject to the following restriction: The notice of defect shall always be made via registered mail / return receipt. The purchaser shall report defects in the purchased goods to AWR without delay, at the latest within one week after the receipt of the goods. Damages which cannot be discovered, even after a thorough examination within this period, are to be immediately communicated to AWR, at the latest within one week after discovery.
7.3. In the event that the purchaser is a company, the purchaser shall cover the expenses of the rectification, insofar as they increase as a result of the item purchased being transported to a location other than the purchaser's company seat or subsidiary, unless such transport is consistent with the goods' intended use.
7.4. The period of limitation for the abovementioned defect claims is two years from delivery of the merchandise for new items. For used items, the period of limitation shall be one year as of the delivery of goods. If the purchaser is a business as per paragraph 14 of the BGB, the period of limitation shall always be one year as of the delivery of goods.
7.5. If operating and maintenance instructions of AWR are not followed, changes are made to the products, parts are replaced or consumable materials are used which do not comply with the original specifications, any claims for defects in the products shall lapse unless the purchaser refutes a reasonably substantiated claim that the defect was caused by one of these circumstances. No liability shall be accepted for normal wear and tear.
7.6. Only the direct purchaser will be entitled to guarantee claims against AWR and such claims are not assignable.
8. Retention of Title
8.1. Until fulfilment of all demands (including all demands relating to the current account balance) which AWR is entitled to for any legal reason to exercise now or in future against the purchaser, AWR is granted the following securities which will be released by AWR on demand and freely selected at their own discretion, provided their value exceeds the demands on a sustained level by more than 10%.
8.2. The purchaser is entitled to process and sell the goods subject to reservation of title in proper trading, so long as the purchaser is not in default. Pledging or transfer of ownership by way of security is not permissible. The claims (including all of the account balance claims from the current account) arising out of the onward sale or another legal ground (insurance, unlawful act) with regard to the goods subject to reservation of title are hereby assigned now as a security by the purchaser to AWR to the full extent. AWR authorizes the purchaser revocably to collect in his own name for AWR 's account the accounts receivable assigned to AWR. This authority to collect may only be withdrawn if the purchaser does not fulfil his payment obligations accordingly.
8.3. In cases where third parties access the goods subject to reservation of title, particularly in the case of distraint, the purchaser will point to the ownership of AWR and inform AWR immediately so that AWR can implement their right of ownership. Insofar as the third party is not in a position to reimburse AWR for the judicial and extra-judicial costs in this matter, the purchaser shall be liable.
8.4. For behavior by the purchaser that is contrary to the contract, in particular for default in payment by the purchaser, AWR is entitled to withdraw from the contract and, at the purchaser's expense, to demand the surrender of the goods subject to reservation of title. AWR’s repossession of the purchased items is considered a withdrawal from the contract. After recovery of the goods for sale, AWR are entitled to make commercial use of them. The redemption revenue shall be calculated against the purchaser's obligations less reasonable redemption costs.
9.1. If not otherwise agreed, AWR’s invoices shall be payable without any discount 2 weeks after receipt of the goods and invoice. After expiration of the payment period, the purchaser is in default without additional reminder. In case of default of payment, AWR shall be entitled – as per paragraph 288 of the BGB – to charge a penal interest amounting to 5 percentage points above the corresponding base interest rate as per paragraph 247 of the BGB. If the purchaser is a business, AWR shall be entitled to charge a penal interest amounting to 9 percentage points above the corresponding base interest rate. AWR generally reserves the right to prove higher losses.
9.2. AWR is entitled, despite contrary provisions of the purchaser, to credit his payments first of all to previous debts of the purchaser and shall inform the purchaser of the assignment of the payment. In the event that costs have been incurred and interest has accrued, AWR may set off payments first against costs, then against interest, and finally against the main performance (as per paragraph 367 of the BGB).
9.3. Payments shall only be considered made when AWR is able to access the amount.
9.4. If AWR comes to learn of circumstances that affect the creditworthiness of the purchaser or if payments are suspended, AWR is entitled to demand the remaining amount owed. In this case, AWR also entitled to demand advance payments or the provision of security.
9.5. The purchaser is only entitled to offset, withhold or reduce payments, even in cases of notices of defects or counter-claims being made valid, where the counter-claims have been established as final and absolute. Nevertheless, the purchaser shall also be entitled to withhold payment on the basis of counterclaims arising from the same contractual relationship.
10. Design Modifications
AWR reserves the right to modify designs at any time. However, AWR is not obligated to also carry out such changes on products that have already been delivered.
11.1. Any claims for damages against AWR are excluded, regardless of which obligations were violated, including tortious conduct, except in the case of willful or gross negligence.
11.2. In case of breach of fundamental contractual obligations, AWR is liable for all negligence, but only up to the amount of the foreseeable direct loss. Claims for lost profit, expenses saved, arising from third party indemnity claims, as well as for any other indirect and consequential damage cannot be asserted, unless a characteristic attribute warranted by AWR is aimed at protecting the purchaser from such loss.
11.3. Insofar as AWR’s liability is excluded or limited, this applies equally to the employees, workers, representatives and vicarious agents of AWR.
12. Applicable Law, Jurisdiction and Partial Invalidity
12.1. These terms of business and all the legal relations between the AWR and the purchaser will be governed by the law of the Federal Republic of Germany. The application of the UN Convention on the International Sale of Goods and the German International Private Law are precluded.
12.2. To the extent a purchaser is a merchant, public law entity or a public law entity with special funds, Potsdam constitutes the exclusive court of jurisdiction for all disputes arising both directly and indirectly from this agreement. In the case that the purchaser’s domicile or place of habitual residence moves abroad after conclusion of the contract or if his domicile or place of habitual residence is not known at the time of the commencement of an action, Potsdam will also be understood as the agreed jurisdictional venue for the taking of legal action against the purchaser.
12.3. If the purchaser is a consumer, the legal provisions of civil procedure apply (paragraph 12 et seq. ZPO)
12.4. Should any individual provision in these terms and conditions or any other provision under other agreements be or become legally ineffective, the remaining provisions and agreements shall remain unaffected thereby.
[Version of September 10th, 2018]