Terms and Conditions
KUSATEK GmbH General Sales and Purchase Terms and Conditions
Actuality: June 2018
Art. 1 Scope, Form
(1) These General Sales and Purchase Terms (GSPT&Cs) apply to all business relationships between KUSATEK GmbH (hereinafter ʺSellerʺ, ʺWeʺ or ʺUsʺ) with our Customers (ʺBuyersʺ). The GSPT&Cs are applicable only if the Seller is a contractor (art. 14 of the Civil Code), a legal person governed by public law or a legal person with the status of a public patrimony.
(2) These GSPT&Cs apply in particular to sales and purchase and/or delivery agreements for movable goods (ʺCommodityʺ) regardless of whether we manufactured the goods or have bought them from a supplier (art. 433, 651 of the Civil Code). Unless otherwise agreed, the GSPT&Cs shall be applied in the current version at the time of the order being made by the Buyer, corresponding in any case to the version sent to the Buyer in the form of a text, representing a framework agreement and other similar future contracts, without this being expressly stated by us in every concrete case.
(3) These GSPT&Cs are exhaustively applied. The general derogatory, contradictory or complementary commercial terms of the Buyer are an integral part of the Agreement only if we have agreed to their express applicability in writing. This consent requirement is valid in any case, for example, when we, knowing the general terms and conditions of the Buyer, we unconditionally accept their deliveries.
(4) Individual agreements concluded with the Buyer in a specific case (including addenda, additions, and amendments) prevail over these GSPT&Cs. For the content of such agreements, if any, a written contract or a written confirmation is decisive.
(5) Representations with legal consequences and Buyer's notifications regarding the Agreement (e.g. setting the due date, notice of default, termination) are made in writing, i.e. in the form of a letter or a text (e.g. letter, e-mail, fax). Legal requirements for compliance with the written form and other forms of evidence remain in force, especially in the case of doubts about the competence of the person making the declaration.
(6) Annotations on the validity of the legal provisions have only a clarification role, and without this clarification, the legal provisions are valid if they have not been modified or directly and explicitly excluded from these GSPT&Cs.
Art. 2 Conclusion of the Agreement
(1) Our offers are free and non-binding. This also applies when we have submitted technical documentation to the Buyer (e.g. sketches, plans, calculations, references to DIN standards), cost estimates, other product descriptions or documents, even in electronic form, for which we reserve the ownership rights and copyrights.
(2) The purchase order placed by the Buyer is a binding contract offer. Unless otherwise stated, we are entitled to accept this offer within 4 weeks of receipt.
(3) Acceptance is done in writing (e.g. by order confirmation) or by shipping the goods to the Buyer.
Art. 3 Delivery Time and Late Delivery
(1) The delivery term is determined individually; accordingly we are to communicate it on our acceptance of the order. If the shipment was contracted, our delivery terms will be the time before delivery of the goods to the sender, carrier or other person authorized to carry out the shipment.
(2) If we are unable to meet the delivery deadlines set out for reasons beyond our control (the indispensability of the provision), we will immediately inform the Buyer about this and at the same time we will communicate a new delivery deadline. If the provision is not made available within the new timeframe then we are entitled to terminate the Agreement in whole or in part. In this case, we will immediately refund the Buyer a compensation for the provision already made. In case of unavailability of the provision in this respect, we consider especially the non-observance of the delivery terms of our suppliers, if we have concluded a congruent cover operation, if the delay occurred not by our fault or by the fault of our suppliers and when we did not undertake the purchase obligation.
(3) Late delivery by us is governed by the law. In any case, a notice of default from the Buyer is required.
(4) Buyer's rights under art. 8 of these GSPT&Cs and our legal rights, in particular in the case of the exclusion of the obligation to perform the provision (e.g. because of the impossibility or the unacceptability of the provision or of a posteriori execution) shall not be affected.
Art. 4 Provision, Delivery, Risk Transfer, Receipt, Late Receipt
(1) Unless otherwise agreed, delivery is made EXW (ex-works), which is considered as the place of execution of the delivery and any possible further execution. At the request and on behalf of the Buyer, we can ship the goods to another place of destination (sales and purchase with shipment). Unless otherwise agreed, we are in a position to establish the type of shipment by ourselves (in particular the shipping company, the shipping route, the packaging to be used).
(2) In a reasonable volume, we are entitled to carry out partial deliveries. A partial delivery is considered reasonable especially when (i) the partial delivery is used for the customer for the purpose stated in the Agreement; (ii) delivery of the remainder of the goods is insured; and (iii) when the Buyer does not incur any significant additional costs as a result of such a delivery (unless the Seller declares that they are willing to reimburse these costs).
(3) The goods are insured by us against theft, damage during transportation, damage by fire and water, and against other risks only at the express wish of the customer and only on their account.
(4) The risk of fortuitous ruination and fortuitous damage of goods is transferred to the Buyer at the latest the time the goods are handed over. In the case of the sale with shipment included, the risk of fortuitous ruination and fortuitous damage of the goods and the risk of delay shall already be transferred from the moment the goods are forwarded to the sender, the carrier or another person or organization empowered to carry out the shipment. If it was agreed to pick-up the goods, it is decisive for the time of the risk. Otherwise, for the agreed pick-up, the provisions of the law applicable to the contractor agreement apply. Transfer or pick-up is not affected if the Buyer is in delay with the pickup.
(5) If the Buyer is delaying in picking up the goods, or fails to fulfil the obligation to cooperate, or if our delivery is delayed for other reasons attributable to the Buyer, then we are entitled to claim compensation for such damage, including compensation for additional costs (e.g. storage costs). For this, we calculate a lump-sum ompensation amounting to 0.5% of the invoiced amount for each calendar week starting on the first day after the expiration date, but no more than 5% of the invoiced amount. In the event of a final failure to pick-up the goods we shall invoice a lump-sum penalty of 10% of the invoiced amount. The Buyer undertakes to submit evidence that no damage has been caused or that substantially less than the amount of the lump-sum penalty has been caused.
The right to prove greater damage, as well as our legal claims (especially on compensation for additional expenses, reasonable compensation and termination) remain unchallenged. In this case, the lump-sum penalty is deducted from the amount of the material claims.
(6) For the assembly and installation of the goods, unless otherwise stated in writing, the following provisions apply:
(a) The Buyer makes executes and makes available on time and on their own:
- all earthworks, construction and other auxiliary works that are not part of our field of activity, in particular the provision of specialists, auxiliary personnel, building materials and tools;
- all materials or objects necessary for assembly and commissioning, such as scaffolding, lifting appliances and other devices, fuels and lubricants;
- energy and water at the place of use, including connections, heating and lighting;
- at the mounting premises, sufficiently large, dry rooms, with the possibility of locking for the storage of the parts of machines, appliances, materials, tools, etc., as well as the workshops and resting rooms for the personnel involved in the installation, including the sanitary facilities appropriate to the circumstances. Otherwise, the Buyer is required to take action on the construction site to protect the property of the supplier and the staff involved in the fitting that they would take to protect the property.
- protective clothing and footwear that is required due to special conditions instead of fitting. Before beginning the assembly works, the Buyer must communicate all the necessary data regarding the position of hidded electric wires, gas pipes and water or such installations, as well as to provide the necessary static data without request from us.
(b) Before starting installation and fitting, instead of installation and fitting, the necessary devices and objects must be brought to start the works. Preparatory work before the installation starts must reach the stage that allows installation and fitting works to be started, without interruption. The access paths and the installation or fitting locations must be open and clean.
(c) If installation, fitting and commissioning are delayed due to circumstances beyond the control of the supplier, the Buyer is to bear to a reasonable extent the waiting costs and additional necessary transport costs of the supplier or staff involved in the mounting.
(d) The Buyer is expected to provide the supplier on a weekly basis with information on the working hours of the staff involved in mounting works, as well as to inform them immediately about the completion of the installation, fitting and commissioning.
Art. 5 Prices and Terms of Payment
(1) Unless otherwise stated, our current prices apply at the time of conclusion of the Agreement, being EXW plus legal VAT and packing and shipping costs.
(2) In the case of a sale with shipment included (art. 4 para. 1), the Buyer shall bear the EXW freight forwarding costs and the transport costs incurred by the Buyer. Any custom duties, tolls, taxes and other public charges are paid by the customer.
(3) The purchase price reaches maturity within 14 days from the date of invoice and delivery, corresponding to the day the goods are picked-up. However, in the current trading relationship, we are entitled at any time to execute the full or partial delivery only after the advance payment has been made. We reserve such discretion at the latest on the date of the order confirmation.
(4) After the payment deadline expires, the Buyer is considered to be in default. In respect of the purchase price during the period of default, the statutory interest rate is applied. We reserve the right to claim remedy for greater damage caused by the delay. Our right to calculate commercial interest remains unchallenged (art. 353 of the Commercial Code).
(5) The Buyer is entitled to the clearing and retention right, if their claim is established to be certain and undoubtedly. In the case of delivery defects, the reciprocal rights of the Buyer, in particular according to art. 7 para. 6 p. 2 of these GSPT&Cs remain unchallenged.
(6) If, after the conclusion of the Agreement, it is established (e.g. by filing the application for the opening of insolvency proceedings) that our right to the purchase price is jeopardized by the Buyer's low payment capacity, then in accordance with the legal provisions on the refusal of the provision and, after the deadline has been set, we are entitled to terminate the Agreement (art. 321 of the Civil Code). In the case of agreements for the manufacturing of non-repeatable goods (private production), we can terminate the Agreement immediately. Legal provisions on the non-usefulness of setting a due date remain unchallenged.
(7) If the Supplier has assumed the installation or fitting obligation and nothing else is agreed, the person who ordered the goods owes the necessary additional expenses, such as transport and travel expenses, as well as the daily allowance.
(8) The Seller may, on the basis of the price fixed in the Agreement, adapt to their sole discretion the evolution of the costs that are decisive for the formation of the price. The costs decisive for the formation of the price are in particular purchase expenses and procurement prices for some parts of the goods to be delivered as well as the change in value added tax.
(a) The Seller can adjust the agreed price at least once a quarter, depending on the changing market conditions.
(b) Art. 5 para. 8 shall not apply if the provision for which the price is to be paid is to be executed within four months after the conclusion of the Agreement. The one month period shall be calculated taking into account the time agreed in the Agreement by the Seller and the Buyer.
(c) The price increase must not exceed 4% of the selling price set at the time the Agreement is concluded. If the price is increased by more than 4%, the Buyer is entitled to terminate the Agreement. The Buyer shall inform the Seller in writing about the termination of the Agreement.
(d) Cost factors will always be weighted according to their significance for the calculation of the total price, and will be equal to any reduction in expenses favourable to the Buyer in other areas at the time of price adjustment.
(e) In the event of a price increase, the Seller shall inform the Buyer of the reasons for the price increase and shall inform the Buyer of the circumstances underlying the price increase.
(f) The price increase does not occur if the price increase is contrary to a price guarantee offered by us.
Art. 6 Retention Right
(1) Until full payment of all our existing and future claims resulting from the Sales and Purchase Agreement and the current trading relationship (insured claims) we reserve the right to ownership over the goods sold.
(2) Goods which are subject to the right of retention until full payment of the insured claims can not be pledged in favour of third parties nor can they be transmitted as pledge. The Buyer will promptly inform us in writing of any application for opening insolvency proceedings or of actions of third parties (e.g. pledges) regarding goods belonging to us.
(3) In the event of a breach of the contractual provisions by the Buyer, especially in the case of non-payment of the due purchase price, we are entitled to terminate the Agreement in accordance with the legal provisions and/or to claim the return of the goods under the retention right. The claim to return the goods does not contain the declaration of termination of the Agreement. We are entitled to claim the return of the goods and reserve the right to terminate the Agreement. If the Buyer does not pay the due purchase price, we can exercise these rights if, before that, we have unsuccessfully awarded the Buyer a reasonable period for making the payment, or if the grant of such a term is unnecessary in accordance with the law.
(4) Until revocation pursuant to p. 6 (e), the Buyer is entitled to further alienate or process the goods subject to the right of retention by ordinary commercial transaction if they are not in default for payment. In these cases the following provisions are additionally applied.
(a) Further alienation of goods subject to the right of retention is permitted only in the ordinary course of trading transactions and only if the Buyer receives the payment from their customer or makes a reservation that the ownership over the goods is transferred to the Buyer only after executing their payment obligations.
(b) The right of retention extends to products in their full value produced by processing, mixing or jointing our products, in which case we are considered as manufacturers. In the event that after the processing, mixing or jointing of the products the third party retention rights arise, we acquire the right of co-ownership pro rata the value of the processed, mixed or joined goods. The rest of the finished product shall be subject to the same provisions as for the goods delivered under the retention right.
(c) Claims to third parties arising from the resale of the goods or the finished products, the Buyer hereby assigns to us to the total amount of our share in common property in accordance with the preceding paragraph, as pledge, including all demand current account balances. We accept the assignment. The obligations of the Buyer referred to in paragraph 2 shall also apply in the light of the divested claims.
(d) The Buyer is empowered with us to collect the claims. We undertake not to collect the claims as long as the Buyer fulfils their payment obligations to us, and their financial capacity is not impaired in any way and we have not exercised our right of retention under para. 3. In this case, we may request that the Buyer inform us of the claims and their debtors, provide us with all necessary information for the execution of the receipts, release the related documents and inform the debtor (third parties) of the assignment. In addition, we are entitled in this case to revoke the Buyer's empowerment to alienate and process the goods subject to the right of retention.
(e) If there is an essential reason, in particular in the case of late payment, termination of payments, the opening of insolvency proceedings or other legitimate reasons for assuming excessive indebtedness or imminent insolvency of the Buyer, we are entitled to revoke the Buyer's empowerment to the proceeds. In addition, the Supplier, based on a prior notice and within a reasonable period of time, is entitled to make public the assignment of the pledge, to assume the assigned claims, or to require the Buyer to inform their customer of the assignment of the pledge.
(f) If the resulted value of the pledges exceeds the amount of our claims by more than 10%, at the request of the Buyer we will release the pledges at our discretion.
(5) The Buyer is to carefully use the goods that are subject to the right of retention. They are to conclude insurance to a sufficient extent by the nominative value on their own account against damage caused by fire, water and theft. If maintenance and inspection works are required, the Buyer must execute them on time.
(6) If the Buyer, under an individual agreement with the Seller, is empowered to make instalment payments and enters default of payment by at least two consecutive instalments or at least 10% of the amount of the partial payment, and in particular does not collect the check or the bill of exchange or stops payments, is entitled to give them in writing a two-week notice for payment of outstanding instalments, with the warning that after the unsuccessful expiration of the set term all future instalments shall become immediately due. In this case, the Seller will provide the Buyer with a reasonable time to pay the full amount.
Art. 7 Buyer's Complainants regarding the Quality of the Goods
The Buyer's rights in the event of material or legal defects (including incorrect or incomplete delivery, inappropriate fitting, or faulty mounting instructions) are governed by legal provisions, unless otherwise agreed. In these cases the special legal provisions regarding the final delivery of the unprocessed goods to a consumer remain unaffected, even if the goods have been processed (recursive action against the supplier under art. 478 of the Civil Code). Claims arising from the right to recursive action against the supplier are excluded if the defective goods have been processed by the Buyer or by another company, e.g. by fitting the goods on other products.
(2) The basis for our quality liability is the agreement on the quality of the goods. Dimensions, weight, drawings and sketches are mandatory for the execution if this has been expressly confirmed in writing.
(3) If no property of the goods has been agreed, it will be determined in accordance with the legal provisions whether the goods have a defect or not (art. 434 para. 2 and 3 of the Civil Code). We assume no liability for third parties' public representations (e.g. advertisements).
(4) The Buyer's complaints regarding the quality of the goods assume that they have fulfilled their obligation of inspection and complaint filling (art. 377, 381 of the Civil Code). If a defect is found during the delivery, inspection, or at a later time, we must be informed immediately by written notice. In any case, obvious defects are brought to our attention in writing within five business days of delivery. In the case of defects not discovered in the inspection, the same notice period is applied from the moment of their discovery. Defects that can be ascertained without inspection or found are to be claimed by the Buyer immediately, but not later than 2 business days after the delivery, after their acknowledgement. If the Buyer omits the appropriate due date for inspection and/or notice of defects, our liability for defects not timely or inappropriately revealed is excluded in accordance with the law.
(5) If the delivered goods are defective, we can choose to perform a posteriori execution either by removing the defect (improvement) or by replacing the defective goods (replacement delivery). Our right to refuse a posteriori execution in accordance with the legal provisions remains unchallenged.
(6) We are entitled to condition a posteriori execution due to the fact that the Buyer paid the due price. However, the Buyer is entitled to retain a reasonable amount of the purchase price pro rata the value of the defect.
(7) The Buyer must give us the opportunity and the time required to execute a posteriori due provision, in particular to pass on the goods claimed for inspection purposes. In case of replacement of the goods, the Buyer is to return the defective goods in accordance with the legal provisions. A posteriori execution does not mean dismantling the defective part and repeating its assembly if initially we did not assumed to carry out assembly.
(8) Expenditure required for a posteriori inspection and execution, in particular transport, travel, labour, and materials used, eventually dismantling and fitting costs, are compensated by us to the extent determined by law if a defect is indeed present. Otherwise, we may request the Buyer to compensate for the costs incurred (in particular inspection and transport expenses) conditioned by an unjustified request to remove the defect, unless the Buyer could not know that there was no defect.
(9) In urgent cases, e.g. that could jeopardize the safety of exploitation or to prevent gross injuries, the Buyer is entitled to remove the defect on their own and to claim from us the compensation of the necessary objective expenses. We must be promptly informed of such actions, as far as possible, before these actions are executed. The right to independent actions does not exist if, in accordance with the new legal provisions, we were entitled to refuse a posteriori execution.
(10) If a posteriori execution fails or if the reasonable time allowed by the customer for a posteriori execution expires, then in accordance with the law, the Buyer may terminate the Sales and Purchase Agreement or reduce the purchase price. If the defect is nonessential, the Buyer can not terminate the Sales and Purchase Agreement.
(11) The Buyer's claims for compensation for damage or compensation for unnecessarily incurred expenses may be submitted in case of defects only in accordance with art. 9, while the rest are excluded.
(12) Complaints regarding the quality of the goods are excluded if the defect has been caused by failure to comply with the fitting and installation instructions or if the products have been subjected to excessive loads. Complaints about the quality of the goods are also excluded if our products have been disassembled by a person not authorized by us, or if fitting non-original parts for the use of which the Buyer did not receive our consent express. This also applies to actions taken by the Buyer on their own.
Art. 8 Manufacturer's Warranty
For products sold by KUSATEK GmbH, a 12 months warranty is granted to the Manufacturer in accordance with the following provisions:
(1) The warranty expires on the day the risk is transferred to the Buyer.
(2) Provisions subject to warranty are only performed when submitting the documents relating to the corresponding product or provision.
(3) The following do not fall under the warranty: filters, burner heads, ignition electrodes, burner pipes and all parts exposed to fire action. The wear phenomena that have occurred through the use of our products are also not covered by the Manufacturer's warranty.
(4) In the event of a modification of the product, performed without the Manufacturer's express consent, any claim under the warranty is excluded.
(5) Defects caused by repairs or interventions by unauthorized persons or inappropriate use are not covered by the warranty. In the meaning of art. 8 para. 5, our employees are authorised, if they are employed within our company and those specialists who carry out repair works with our agreement.
(6) In the case of warranty claims, the serial number and item number with the name of the product and the clear description of the defect must be provided.
(7) If a third party (such as an intermediary distributor acting in the capacity as the Buyer's contractual partner) meets the Buyer's claim under the warranty, without first coordinating with us the type and the provision subject to warranty, we are not obliged to compensate for the expenses incurred in connection with the provision under warranty or the a posteriori execution.
Art. 9 Other Liability
(1) Unless otherwise provided by these GSPT&Cs or the following provisions, we are held liable in the event of a breach of our contractual and non-contractual obligations in accordance with the legal provisions.
(2) For the purpose of remedy of the damage, for whatever legal reason, we are liable within the limits of the subjective liability in the case of intentional or gross negligence. In the case of minor negligence, we are held liable, subject to the application of a more light form of liability, in accordance with the legal provisions (e.g. for the accuracy of the business), only for:
a) damages to life, body or health;
b) damages caused by the essential breach of a primary obligation (obligation, the execution of which makes it possible to execute the Agreement properly and in respect of which the contracting party normally has confidence and trust). In this case, our liability is limited to repairing the foreseeable and typical damage.
(3) The limits of liability arising from paragraph 2 also apply to breach of obligations by or in favour of persons, the fault of which, in accordance with legal provisions, is imputable to us. They are not valid, if we are concealing a defect or if we have assumed the warranty granted for the quality of the goods and the Buyer's claims in accordance with the Product Liability Act.
(4) In the event of a breach of an obligation not consisting of a defect, the Buyer may terminate the Agreement only if the breach of the obligation is imputable to us. The right of the Buyer to unilaterally terminate the Agreement (in particular under art, 651, 649 of the Civil Code) is excluded. Otherwise, legal provisions and legal effects apply.
Art. 10 Limitation Period
(1) By way of derogation from art. 438 para. 1 p. 3 of Civil Code, the general limitation period for claims for defect remedy is 1 year from the moment of delivery. If the pick-up of the goods has been agreed, the limitation period shall expire as soon as the pick-up takes place.
(2) In case the goods consist of a building or an estate that according to its normal intended use was used for a construction and caused its defect (construction material), the limitation period according to the legal provisions is 5 years from the moment of delivery (art. 438 para, 1, p. 2 of the Civil Code). The special legal provisions on the limitation period remain unchallenged (art, 438, para. 1, p. 1, para. 3, art. 444, art. 445b of the Civil Code).
(3) The limitation period for the right to purchase applies in the volume established by law in respect of all claims of the Buyer for damages remedy, if they are based on a defect, if the application of the statutory prescription timeframes (art. 195, 199 of the Civil Code) in a specific case does not lead to a shorter limitation period. Buyer's claims for compensation for damages under art. 8 para. 2 p. 1 and p. 2 (a), as well as those under the Product Liability Act, are prescribed exclusively within the statutory limitation periods.
Art. 11 Applicable Law and Jurisdiction
(1) With respect to these GSPT&Cs and the contractual relationships between us and the Seller, the Federal Republic of Germany law applies, with the exclusion of international uniform laws, in particular UN procurement law.
(2) The exclusive and international jurisdiction to settle all disputes arising from the Agreement is the court of law at our headquarters in Driedorf. However, we are in all cases entitled to file a claim for damages at the place of performance of the delivery obligation under these GSPT&Cs, in accordance with a prior individual agreement, or at the court of law at the Buyer's premises.
KUSATEK GmbH General Purchase Terms and Conditions
Actuality: June 2018
Art. 1 Scope, Form
(1) These General Purchase Terms (GPT) apply to all business relationships between KUSATEK GmbH (hereinafter ʺSellerʺ, ʺWeʺ or ʺUsʺ) with our business partners and suppliers (ʺSellersʺ). GPTs are applicable only if the Seller is a contractor (art. 14 of the Civil Code), a legal person governed by public law or a legal person with the status of a public patrimony.
(2) These GPTs apply in particular to sales and purchase and/or delivery agreements for movable goods (ʺCommodityʺ) regardless of whether the Seller is also the manufacturer of the goods or has bought them from a supplier (art. 433, 651 of the Civil Code). Unless otherwise agreed, the GPTs shall be applied in the current version at the time of the order being made by the Buyer, corresponding in any case to the version sent to the Buyer in the form of a text, representing a framework agreement and other similar future contracts, without this being expressly stated by us in every concrete case.
(3) These GPTs are exhaustively applied. The general derogatory, contradictory or complementary commercial terms of the Seller are an integral part of the Agreement only if we have agreed to their express applicability in writing. This consent requirement is valid in any case, for example, when we, knowing the general terms and conditions of the Seller, unconditionally accept its deliveries.
(4) Individual agreements concluded with the Seller in a specific case (including addenda, additions, and amendments) prevail over these GTPs. For the content of such agreements, if any, a written contract or a written confirmation is decisive.
(5) Representations with legal consequences and Seller notifications regarding the Agreement (e.g. setting the due date, notice of default, termination) are made in writing, i.e. in the form of a letter or a text (e.g. letter, e-mail, fax ). Legal requirements for compliance with written form and other forms of evidence remain in force, especially in the case of doubts about the competence of the person making the declaration.
(6) Annotations on the validity of the legal provisions have only a clarification role, and without this clarification, the legal provisions are valid if they have not been modified or directly and explicitly excluded from these GPTs.
Art. 2 Conclusion of the Agreement
(1) Our order becomes mandatory not earlier than the time of sending a written confirmation. The Seller will draw attention to the obvious mistakes (e.g. printing errors or calculations), incomplete ordering, including ordering documents, so that we can correct them properly, and we can complete them before accepting the order. Otherwise the Agreement is not deemed to have been concluded.
(2) The Seller is required to confirm our order within 2 weeks or to execute it unconditionally by shipping the order (acceptance of the order). Late acceptance is considered to be a new offer and requires acceptance on our part.
Art. 3 Delivery Time and Late Delivery
(1) The delivery term we specify in the order is mandatory. If the time limit for the provision has not been clearly established and does not arise from other circumstances, the debtor is to execute it immediately (art. 271 of the Civil Code). The Seller is required to inform us immediately in writing whether they can not comply with the agreed delivery time, regardless of the reason for the delay.
(2) If the Seller does not execute provision or performs it in breach of the established delivery deadline or is late in their provision, then our rights, especially the right to termination and the repair of the damage, will be regulated in accordance with the law. The provisions of art. 3 remain valid.
(3) If the Seller is in default, we are entitled - in addition to other legal claims, to claim a lump-sum compensation for the damage caused by a delay, of 0.25% of the net price for each calendar day, in total, but no more than 5 % of the net price of the goods delivered late. We reserve the right to submit evidence to confirm the cause of greater damage. The Seller reserves the right to submit evidence to confirm that no damage has been caused or considerably less damage has been caused.
Art. 4 Provision, Delivery, Risk Transfer, Late Receipt
(1) Without prior written consent, the Seller is not entitled to allow the performance of the provision due by them to third parties (e.g. sub-contractors). The Seller bears the risk of purchase for their provisions, unless otherwise specified in each specific case (e.g. stock limitation).
(2) On the territory of Germany delivery is free of charge to the place indicated in the order. If the place of destination is not indicated or otherwise agreed, delivery is to be made at our legal premises in Driedorf. The appropriate place of destination is also the place of delivery, as well as the place of completion of incomplete deliveries (completion duty).
(3) Upon delivery, the dated delivery note (for delivery and shipment), the delivery contents (item number and quantity) as well as reference dates of our order (date and number) are attached. If the delivery note is missing or is incomplete, then we are not to be held responsible for the delay in processing and payment. Apart from the delivery note to our address, the CMR waybill with the same content will be sent.
(4) The risk of fortuitous ruination and fortuitous damage of goods is transferred to our behalf when the goods are delivered to the place of delivery. If it has been agreed for us to take over the goods, it plays the decisive role in transferring the risk. Otherwise, the statutory provisions laid down for the regulation of the takeover in the business agreement apply. Both the transmission and the takeover of the goods by us are subject to the same provisions if we are in default.
(5) In the case of delay in receiving the goods, the relevant legal provisions apply. The Seller has to expressly carry out provision also when, for a particular action or cooperation on our part (e.g. making the material available), a certain determined or determinable calendar timeframe has been established. If we are late in receiving the goods, the Seller may require, in accordance with the law, compensation for additional expenses incurred (art. 304 of the Civil Code). If the object of the Agreement is are goods manufactured by the Seller and is not a serial product (special individual order), then the Seller has other more extensive rights only if we have compelled to cooperate and have not fulfilled this obligation.
Art. 5 Prices and Terms of Payment
(1) The price indicated in the order is mandatory. All prices are inclusive of VAT, if it is not reported separately.
(2) Unless otherwise stated in a specific case, the price includes all of the Seller's provisions and additional provisions (e.g. assembly, installation) as well as related expenses (e.g. appropriate packaging, transport costs, including insurance for transport and insurance of civil liability).
(3) The agreed price reaches maturity within 30 calendar days from the date of full delivery and performance of the provision (including the agreed takeover) upon receipt of the appropriate invoice. If we will make the payment within 14 calendar days, the Seller will give us a 3% discount on the net invoiced amount. When making bank transfers, payment is considered to have been made in time if our payment order for the transfer was sent to our bank before the expiration of the due payment date. We are not responsible for delays conditional on the processing of payments by the involved banks.
(4) We do not owe any penalties in case of late payment. In the case of late payment, the legal rules apply.
(5) We have the right to compensation and retention, as well as the submission of claims in the non-executed part of the Agreement in the legal volume. In particular, we are entitled to withhold outstanding payments if we have claims against the Seller regarding incomplete or defective provisions.
(6) The Seller has the right to compensation and retention only in the case of certain and uncontested claims.
Art. 6 Confidentiality and Prolonged Retention Right
(1) The drawings, plans, sketches, calculations, execution instructions, product descriptions, and other documents made available by us to the Seller or at the disposal of the Seller's contractual or cooperation partner constitute our property. These documents can only be used for the execution of the contractual provision and after the performance of the agreement are to be returned back. It is necessary to keep confidentiality with regard to these documents to third parties, including after the termination of the Agreement. The obligation to maintain confidentiality expires only after the information contained in the transmitted documents has become generally
known and accessible. For the transmission or making available to third parties of the documents referred to in point 1, the consent of the Buyer is required.
(2) Paragraph 1 applies appropriately to substances and materials (e.g. software, finished products and semi-finished products) as well as tools, models, samples and other items that we provide to the Seller for production purposes. Such items, as long as they have not been processed, are to be stored by the Seller on their behalf and
protected in a reasonable volume against destruction or ruination.
(3) Processing, mixing, or joining (further processing) by the Seller of the items made available to them is done for us. The same applies to the processing of the goods delivered by us, so we are considered as manufacturers and we acquire the ownership of the finished product resulting from the subsequent processing in accordance with the legal provisions.
(4) The transfer of ownership of the goods to us is carried out unconditionally and without taking into account the payment of the price. If in a specific case we accept the Seller's offer for the transfer of the right to property conditional on the payment of the price, the Seller's extended retention right expires at the latest with the payment of the price for the delivered goods. In the normal course of business and until payment of the purchase price, we are entitled to begin the subsequent processing of the goods in accordance with the requirements arising therefrom (additionally, the application of the simple and prolonged retention right until resale). This excludes any form of retention of property rights, in particular the simple and prolonged retention right until further processing.
Art. 7 Defective Deliveries
(1) With regard to our rights in the event of material and legal defects in the goods (including incorrect or incomplete delivery, inappropriate fitting, installation, and exploitation or malfunctioning instruction) and in other cases of breach of the obligations by the Seller, the legal provisions apply if nothing else has been stipulated.
(2) In accordance with the legal provisions, the Seller bears the responsibility in particular for the fact that the goods in the transfer of the risk to us have a certain quality. The assent on the quality of goods is considered to be those descriptions of the product which, in particular by indicating or referring to them in the order, are the subject of an appropriate agreement or are included in the Agreement in a similar way as presented in the GPTs. It is of no consequence whether the product description has been provided by us or by the Seller.
(3) By way of derogation from art. 442 para. 1 p. 2 of the Civil Code, the right to submit claims also belongs to us when, in gross negligence, we did not find out about the defect at the date of conclusion of the Agreement.
(4) Regarding the commercial investigation and prosecution obligation, the legal provisions (art. 377 and 381 of the Commercial Code) apply as follows: Our investigation obligation is limited to those defects that are established in the control of the goods upon their arrival through its external examination and on the basis of
documents relating to the delivery (e.g. damage during transport, incorrect or incomplete delivery) or those defects discovered in our quality control by sampling. Otherwise it depends on the extent to which investigation will be useful in the light of the circumstances of each particular case according to the proper performance of the
commercial activity. Our liability for defects discovered later remains valid. Without prejudice to our investigation obligation, our complaint is deemed to have been filed immediately and in due time if it was dispatched within 5 business days of discovery and in the case of obvious defects from the moment of delivery.
(5) A posteriori execution involves the dismantling of the defective goods and their repeated installation, if the goods by their nature and intended use can be assembled in another way or installed into another place. In this case, we still have the right to claim compensation for the corresponding expenses. Expenditure required for a posteriori verification and execution is borne by the Seller even when it is found that in reality there was no defect. We remain liable for compensation for damage if the claim for the defect removal was unjustified. So we only assume responsibility if we have recognized or negligently not acknowledged that there was no defect.
(6) Without prejudice to our legal rights and the regulations provided in art. 5, it is established: If the Seller fails to fulfil their post-execution obligation, which after our choice is made either by removing the defect (improvement) or by delivering goods without defects (replacement), within a reasonable time set by us, then we are entitled to remove the defect and ask the Seller to compensate for the necessary expenses or to pay an appropriate advance. If the Seller has failed to execute an a posteriori obligation, or if it is not acceptable to us (e.g. due to special urgency, the danger to the safety of exploitation or the threat of causing disproportionate damage), it is not necessary to set the deadline. We will inform the Seller immediately of the occurrence of such circumstances.
(7) Otherwise, in the case of material or legal defects, we are legally entitled to reduce the purchase price or terminate the Agreement. In addition, as per the legal provisions, we can claim compensation for the damage caused and the expenses incurred.
Art. 8 Recursive Actions to Suppliers
(1) Our rights to the recursive action established by law in a chain of suppliers (recursive actions to suppliers under art. 445a, 445b, 478 of the Civil Code) are unlimited to us in addition to our rights to request the removal of defects. In particular, we are in a position to ask for a concrete way of a posteriori execution (improvement or delivery of another product) by the Seller, which we owe to our client in every particular case. Our right to choose (art. 439 para. 1 of the Civil Code) is unlimited.
(2) Before we acknowledge or execute a claim for the remedy of the defect submitted by our client (including the request for compensation of expenses under art. 445a para. 1, 439 para. 2 and 3 of the Civil Code), we will inform the Seller and we will ask them to give a brief account of the circumstances of the case, a written reference. If a detailed reference is not submitted within a reasonable time and no amicable solution is found then it is considered that our claim for defect is owed to our final customer. The Seller undertakes in this case to prove the opposite.
(3) Our claims arising from the recursive action to suppliers are also valid when the defective goods were subsequently processed by us or by another contractor, e.g. by fitting into another product.
Art. 9 Manufacturer's Liability
(1) If the Seller is responsible for the damage to the product, they will be relieved of the claims of third parties because the cause is believed to be in their scope of production and organization and they alone bear liability to third parties.
(2) Under the obligation of exemption from liability, the Seller shall compensate for the expenses under art. 683, 670 of the Civil Code, which have been incurred in connection with the use of third party services, including in connection with the factory recalls made by us. We will inform the Seller, if this is possible and acceptable to us, of the content and volume of the recall actions and we will give them the opportunity to provide a reference in this respect. This does not exclude the possibility of other claims being advanced by us.
(3) The Seller undertakes to conclude and maintain the liability insurance of the Manufacturer of the product with a lump sum amount of no less than two (2) million euro for damage to the person / material prejudice.
Art. 10 Limitation Period
(1) The reciprocal claims of the Contracting Parties shall be prescribed in accordance with the law, unless otherwise stated.
(2) By way of derogation from art. 438 para. 1 p. 3 of the Civil Code, the general limitation period for claims for defect removal is 3 years from the time of the risk transfer. If the takeover of the goods has been agreed, the limitation period shall expire as soon as the takeover is completed. The 3-year limitation period applies accordingly to all claims arising out of legal defects, whereas the limitation period for claims by third parties covered by actual guarantees (art. 438 para. 1 p. 1 of the Civil Code) remains in force. In addition, claims arising from legal defects are not written off in any case, if third parties can still submit claims to us.
(3) The limitation period for the right to purchase including the above mentioned extension applies in the amount established by law in respect of all contractual claims for the removal of defects. If, due to a defect, we are also entitled to submit noncontractual claims, the statutory limitation period established by law (art. 195, 199 of the Civil Code) applies to them, if the application of limitation periods for the right to purchase in one case in particular, does not lead to the setting of a longer limitation period.
Art. 11 Applicable Law and Jurisdiction
(1) With respect to these GPTs and the contractual relationships between us and the Seller, the Federal Republic of Germany law applies, with the exclusion of international uniform laws, in particular UN procurement law.
(2) If the Seller has the status of a trader within the meaning of the Commercial Code, a legal person governed by public law or a legal person with a public property status, the exclusive and international jurisdiction to settle all disputes arising out of the Agreement is the court of law at our headquarters in Driedorf. The same is true when the Seller is a contractor within the meaning of art. 14 of the Civil Code. However, we are in all cases entitled to file a statement of claim for damages at the place of performance of the delivery obligation under these GPTs, according to a prior individual agreement or with the court of law at the Seller's registered office. Priority legal provisions, especially those relating to exclusive competence, remain unchallenged.