KSM – GT&Cs (01/06/2018)
Status as of: 01/06/2018
Section 1: Scope
- All deliveries, services and offers of KSM Klingner + Siegmund Maschinenbau GmbH (hereinafter referred to as “the seller”) are made exclusively on the basis of these GT&Cs. These are an integral part of all contracts that the seller concludes with its contractual partners (hereinafter referred to as “customers”) regarding the deliveries or services offered by the seller. They also apply to all future deliveries, services or offers to the customer, even if they are not agreed again separately.
- Terms and conditions of the customer or third parties shall not apply, even if the seller does not separately object to their validity in individual cases. Even if the seller refers to a letter containing or referring to terms and conditions of the client or a third party, this does not constitute agreement with the validity of those terms and conditions.
Section 2: Offer and conclusion of contract
- All offers of the seller are subject to change and non-binding, unless they are expressly designated as binding and are included in the contract as its content. The seller is bound to specially prepared offers for 90 calendar days from the date of the offer, unless a different deadline has been set in writing.
- The contract of sale is only concluded between the contracting parties upon written confirmation of the seller’s order, but not until the parties have agreed on all commercial issues and any necessary official or other approvals have been granted.
- Orders can be accepted by the seller within fourteen days of receipt.
- Only decisive for the legal relationship between seller and customer is the concluded purchase contract including these GT&Cs and are binding for both parties. Verbal promises, guideline and estimation offers, drawings, calculations, specifications as well as details of performance, dimensions and weight before conclusion of this contract are legally non-binding and require the written confirmation of the seller in order to be effective.
- Information in offers and/or order confirmations of the seller which are based on an obvious error, namely a typing or calculation error, do not oblige the seller. Rather, the obviously intended explanation applies.
- The conclusion of the contract is subject to correct and timely delivery by the seller’s suppliers. This only applies in the event that the seller is not responsible for the non-delivery, in particular if a congruent hedging transaction is concluded with the seller’s suppliers. The customer will be informed immediately of the non-availability of the service. The service in return shall be reimbursed immediately.
Section 3: Obligation of the customer to cooperate, provision of system components and sample parts
- The customer must make available all information, documents and materials required for the provision of the service within the period specified in the contract and must immediately perform all duties of cooperation incumbent upon him, e.g. construction measures. If the customer fails to fulfil his obligations to cooperate, in particular to submit the necessary documents, information and data as well as the provision of sample parts, delays and additional costs arising therefrom shall be borne by him and may be invoiced to him by the seller.
- Sample parts shall be made available to the seller free of charge in due time, to the extent specified in the purchase contract and in perfect condition. The customer shall provide system components on schedule and at the customer’s expense and risk. The seller assumes no liability for the sample parts sent to him.
- Delayed or faulty provision of the sample parts or system components shall extend the delivery period accordingly. Except in cases of force majeure, the customer shall bear the additional costs incurred, including any resulting interruptions and changes to production.
- A change of the machine parameters or sample parts after conclusion of the contract is only possible within the period stipulated in the contract without further ado. If the customer wishes such a change after expiry of the deadline, the seller can demand negotiations on a new determination of the price and the delivery time.
Section 4: Intellectual property, confidentiality
- The seller retains title or copyright to all offers and cost estimates submitted by him as well as all documents, software, materials and aids made available to the customer.
- Without the seller’s express consent, the customer may not make these items available to third parties, make them known, use them himself/herself or through third parties or reproduce them.
- At the seller’s request, the customer shall return to the seller in full or destroy any items previously mentioned and any copies made if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Digital copies must be destroyed.
Section 5: Prices, payments and terms of payment
- The prices in EUROS at the time of conclusion of the contract for the scope of services and delivery stated therein shall apply. If there are more than six months between conclusion of the contract and the agreed and/or actual delivery date and no fixed price agreement has been made, the seller shall be entitled to demand negotiations on a new price in the event of price increases by its suppliers, increases in wage and transport costs or other unexpected cost increases.
- Prices are ex works, excluding packaging, without special agreements. In addition to the prices, the value added tax in the respective legal amount on the day of invoicing shall be added, which is shown separately.
- Invoice amounts are to be paid within 30 days, less two percent discount for payment within the first eight days, free of charge to the payment offices defined in the contract, unless otherwise agreed in writing. The date of receipt by the seller shall be decisive for the date of payment. Cheques are considered as payment only after they have been cashed.
- If a separate payment agreement has not been made, the customer shall perform services on the work to be produced as follows:
- 30% down payment immediately after receipt of order confirmation
- 60% as soon as the customer is informed that the goods are ready for dispatch
- 10% after installation and commissioning, but no later than 30 days after delivery
Other invoices relating to services are due and payable immediately without deduction and free of charge to the payment offices defined in the contract.
- Any expenses incurred shall be borne by the customer and shall be charged separately.
- The seller has the right to assign claims to third parties. The customer will be informed by the seller about this fact without delay, whereby no reasons have to be given.
- After expiry of the respective periods, the customer shall also be in default without a separate reminder. The statutory provisions shall apply in this respect. Interest on arrears in the amount of ten percentage points above the respective discount rate of the German Federal Bank shall apply. The right to assert a proven, higher interest damage and other damage caused by default remains unaffected.
- If payments are deferred, interest of 0.8% per month shall be charged for the period of the deferral.
- In the case of long-term payment agreements, the entire remaining amount shall become due for payment immediately if the customer is in arrears for more than ten working days.
- The same applies in the event of a significant deterioration in the customer’s financial situation and in the event of suspension of payments, in particular in the event of the customer’s over-indebtedness, in the event of an application for bankruptcy or settlement of the customer’s assets and in the event of bill and cheque protests becoming known. In this case, the buyer is obliged to inform the seller immediately of the occurrence of the aforementioned situation and the seller is entitled to refuse further deliveries until all claims, whether due or not, have been settled or security has been provided for them.
- The customer shall only be entitled to withhold payments or offset them against counter-claims arising from the legal relationship in dispute to the extent that counter-claims are undisputed or have become res judicata and the withholding is based on the same contract. The customer’s Rights of retention and rights to refuse performance are excluded.
- So long as claims have not yet been settled, the customer is obliged to inform us of any change in his/her address for shipment without being asked.
Section 6: Delivery and service period
- The delivery period begins with the dispatch of the order confirmation, but not before provision of the documents, information, approvals, releases to be procured by the customer and before receipt of the agreed down payment and the samples. If the customer does not comply with payment and letter of credit opening dates, the seller will be released from the delivery obligation for the duration of the delay.
- The delivery period shall be extended appropriately in the event of unforeseen obstacles and force majeure (e.g.: war, thunderstorms, strikes, etc.), regardless of whether these occur at the seller’s factory or at a subcontractor, insofar as such obstacles can be proven to have a considerable influence on the completion or delivery of the delivery item. The aforementioned circumstances are not the responsibility of the seller if they occur during an already existing delay. In addition, the seller is also entitled to withdraw from the contract in whole or in part due to the unfulfilled part of the delivery. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
- The delivery date shall be deemed to have been met if the delivery item is ready for dispatch at the seller’s or his/her sub-contractor’s site on the agreed date. If acceptance is to take place, the date of acceptance – except in the case of justified refusal of acceptance – shall be decisive, alternatively the notification of readiness for acceptance.
- The seller is entitled to make partial deliveries, insofar as this is reasonable for the customer. These have a delaying effect.
- In the event that the seller culpably exceeds an agreed delivery period, delivery delay shall only occur after setting a reasonable period of grace.
- The assertion of a contractual penalty is excluded in the event of a delay in delivery.
- Any further liability for a delay in delivery for which the seller is responsible is excluded. The further legal claims and rights of the customer to which he is entitled in addition to the claim for damages due to a delay in delivery for which the seller is responsible shall remain unaffected.
- If the customer is in default of acceptance, a period for subsequent performance of the contract shall be set. The deadline must be set in writing and the deadline must be at least three business days.
- After fruitless expiry of the grace period, the seller can withdraw from the contract and/or claim damages.
- If the customer does not accept a properly offered delivery, the customer is in default of acceptance. During the customer’s default in acceptance, the seller is entitled, after prior warning, to make a self-help sale by private contract for the customer’s account. Own-name transactions are permitted.
- If the customer is in default of acceptance, the seller can deposit the delivery item for the customer’s account in a public warehouse or otherwise in a secure manner.
Section 7: Place of performance, shipment, transfer of risk and acceptance
- The place of performance for all obligations arising from the contractual relationship is Braunschweig, unless otherwise agreed. If the seller is also responsible for installation, assembly and/or acceptance, the place of performance shall be the place specified in the contract.
- The type of dispatch and packaging are subject to the dutiful discretion of the seller, which will take into account the wishes and interests of the customer with regard to the type and route of dispatch. Any additional costs resulting from this – even in the case of agreed freight-free delivery – shall be borne by the customer.
- At the customer’s request, the seller will insure the delivery with transport insurance, the costs incurred in this respect shall be borne by the customer.
- The customer bears the risk of accidental loss or accidental deterioration of the goods from the time the goods are handed over to the customer. In the case of dispatch, the risk of accidental loss shall pass to the customer at the time of handover of the goods to the person designated to carry out the dispatch, whereby the start of the loading process shall be decisive. This also applies if partial deliveries are made or if the seller has taken over other services (e.g. dispatch or installation). If dispatch or handover is delayed due to circumstances caused by the customer, risk shall pass to the customer from the day on which the delivery item is ready for dispatch and the seller has notified the customer thereof.
- Storage costs after transfer of risk shall be borne by the customer. In the event of storage by the seller, the storage costs shall amount to 0.25% of the invoice amount of the items to be stored per week. We reserve the right to assert and prove further or lower storage costs.
- In the event of acceptance, the handover of the object or the service shall be recorded in writing in an acceptance report – if necessary after installation at the place of destination. If acceptance is not possible upon handover of the service, the customer is obliged to declare acceptance to the seller in writing immediately after handover of the service result. Any defects must also be reported to the seller in writing without delay. If the customer does not refuse acceptance within two weeks of delivery of the performance result in writing and with reasonable justification, this shall be deemed to have been granted. Furthermore, acceptance shall be deemed to have taken place if the service has been commissioned in accordance with the contract after seven calendar days or if the service has been sold by the customer or third parties. In the case of completed partial performances, the seller has the right to demand partial acceptance.
Section 8: Retention of title
- Until all claims to which the seller is entitled against the customer now or in the future have been settled, the seller shall be granted the following securities, which he/she will release at his/her discretion upon request, insofar as their value exceeds the claim by more than 20% on a sustained basis.
- The delivered goods remain the property of the seller until full payment has been received. The customer shall safeguard the (co-) ownership of the seller free of charge.
- The customer is obliged to handle the goods with care. If maintenance and inspection work is required, the customer must carry it out regularly at his/her own expense using original spare and wear parts.
- Furthermore, the customer is obliged to insure the goods against fire and natural hazards until full payment has been made.
- The customer is obliged to inform the seller immediately of any third-party access to the goods, for example in the event of seizure, as well as any damage to or destruction of the goods. The customer must immediately notify the seller of a change of ownership of the goods as well as a change of his/her own place of residence.
- The seller is entitled to withdraw from the contract and to demand the return of the goods in the event of breach of contract on the part of the customer, in particular in the event of default in payment or breach of an obligation pursuant to sections (3), (4) and (5) of this provision. The seller has a special right of termination/right of withdrawal in the event of and at the time of the application for the opening of insolvency proceedings by the buyer.
- The customer is entitled to resell the goods in the ordinary course of business. He/she hereby assigns to the seller all claims in the amount of the invoice amount which accrue to him/her against a third party as a result of the resale. The seller accepts the assignment. After the assignment, the customer is empowered to recover the claim. The seller reserves the right to recover the claim him/herself as soon as the customer does not properly meet his/her payment obligations or is in default of payment.
- The treatment and processing of the goods by the customer always takes place in the name and on behalf of the seller. If processing takes place with objects not belonging to the seller, the seller acquires co-ownership of the new object in proportion to the value of the goods delivered by the seller to the other processed objects. The same applies if the goods are mixed with other items not belonging to the seller.
Section 9: Warranty
- The warranty period is one year from delivery or, if acceptance is required, from acceptance. In the case of a machine or line contract, this period applies to a single-shift operation. If the customer uses the systems in multi-shift operation, the warranty period shall be reduced accordingly (to 6 or 4 months).
- The binding information in the sales contract or, if agreed, the product samples which are submitted to the customer for inspection on request prior to delivery shall be decisive for the quality of the items. References to technical standards are regarded as performance specifications and do not constitute a guarantee of quality. Tolerances customary in the industry shall apply.
- Insignificant, reasonable deviations in dimensions and design – especially in the case of repeat orders – do not constitute an entitlement to submit a complaint unless absolute compliance has been expressly agreed. Technical improvements and necessary technical modifications shall also be deemed to be in accordance with the contract, provided that they do not constitute a deterioration in fitness for use.
- The delivered goods must be carefully inspected immediately after delivery to the customer or to the third party designated by him/her. They shall be deemed to have been approved if the seller has not received a written complaint regarding obvious defects or other defects which were identifiable during an immediate, careful inspection within seven working days of delivery of the delivery item or otherwise within seven working days of discovery of the defect or any earlier time at which the defect was identifiable to the customer during normal use of the delivery item without further investigation.
- The buyer must grant the seller a reasonable period of time for subsequent performance, otherwise the seller is released from liability and for the resulting consequences. Only in urgent cases of danger to operational safety or to avert disproportionately high damage is the buyer entitled to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the seller. In this case, the seller must be informed immediately.
- If the customer’s complaint proves to be justified, the seller shall bear the direct costs incurred for the rectification of the complaint, insofar as this does not impose a disproportionate burden on the seller.
- If the subsequent performance has finally failed or if the seller – taking into account the statutory exceptions – allows a reasonable period of time set to him for subsequent improvement or replacement delivery due to a considerable defect to elapse to no avail, the buyer can choose between withdrawal from the contract and reduction of the contract price. In the case of an insignificant defect, the buyer is only entitled to a reduction of the contract price.
- In the event of defects in components of other manufacturers which the seller is unable to remedy for legal licensing or actual reasons, the seller shall, at his/her discretion, assert its warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer.
- The warranty does not apply to natural wear and tear. It is further excluded if defects are due to soiling, faulty, negligent or improper handling or operation, excessive strain, chemical influences, mechanical damage or unsuitable equipment not specified by the seller, inadequate maintenance or servicing, use of non-original replacement parts for maintenance and repair, improper installations or other interventions by the customer or third parties.
- If the customer receives faulty assembly instructions, the seller is only obliged to supply faultless assembly instructions and this only if the fault in the assembly instructions prevents proper assembly.
- The above provisions of this paragraph do not apply to the sale of used goods. Consumers have a period of one year for asserting claims for defects. Merchants in the sense of the German Code of Commercial Law, legal entities under public law or special funds under public law shall be supplied with used objects to the exclusion of any claims for defects.
- The customer’s right of recourse against the seller shall only exist insofar as the customer has not made any agreements with his/her customer that go beyond the legally mandatory claims for defects.
Section 10: Liability
- The customer’s right to assert further claims for damages due to a material defect is excluded unless the seller maliciously concealed the defect or failed to comply with a quality guarantee.
- The seller shall only be liable for damage which has not occurred to the delivery item in the event of intent, gross negligence on the part of authorities or executive employees, culpable injury to life, body and health, and insofar as liability is assumed under the German Product Liability Act for personal injury or property damage to privately used items. In the event of culpable breach of material contractual obligations, the seller shall also be liable for gross negligence on the part of non-executive employees.
- The seller is not liable in the case of simple negligence of his/her legal representatives, employees or other vicarious agents, unless it is a violation of essential contractual obligations. Essential to the contract are the obligation for timely delivery and/or installation of the delivery item free of essential defects as well as duties of advice, protection and care, which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer’s personnel or to protect the customer’s property from considerable damage.
- In the event of liability for simple negligence, the seller’s obligation to pay compensation for property damage and resulting further financial losses is limited to an amount of EUR 10,000,000 per case of damage (in accordance with the current sum insured under the liability insurance), even if it concerns a breach of material contractual obligations.
- The seller shall not be liable in the event of unsuitable or improper use, faulty assembly or commissioning, natural wear and tear, faulty or negligent handling, improper maintenance, use of unsuitable operating resources not specified by the seller, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences – provided that the seller is not responsible for them.
- If the customer or a third party carries out improper repairs or uses non-original replacement parts, the seller shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of the seller.
- Insofar as the seller provides technical information or acts in an advisory capacity and such information or advice does not form part of the contractually agreed scope of services owed by him/her, this shall be free of charge and to the exclusion of any liability.
- The customer’s claims for damages become statute-barred after twelve months. The statute of limitations period begins with the transfer of risk or with acceptance.
- The above provisions shall apply equally to defects of title.
Section 11: Protective rights and copyrights
- In accordance with this paragraph, the seller shall guarantee that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it for the infringement of such rights.
- In the event that the delivery item infringes an industrial property right or copyright of a third party, the seller shall, at his/her discretion and expense, modify or replace the delivery item in such a way that no more rights of third parties are infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the customer by concluding a licence agreement.
- The above obligations shall only apply to the seller if the buyer immediately notifies the third party of the claim, does not acknowledge the violation towards the third party and all defence and other measures remain reserved to the seller.
- In the event of infringements of rights by products of other manufacturers supplied by the seller, the seller shall, at his/her discretion, assert his/her claims against the manufacturers and sub-contractors for the client’s account or assign them to the customer.
- If the seller has to deliver according to drawings, models, samples or using parts provided by the customer, the customer is responsible for the fact that industrial property rights of third parties are not infringed. The seller will inform the customer of rights known to him/her. The customer must indemnify the seller against claims of third parties and pay compensation for any resulting damage. If the seller is prohibited from manufacturing and delivering by a third party with reference to a property right belonging to him/her, he/she is entitled to stop the work until the legal situation has been clarified by the customer and the third party. Should the continuation of the order no longer be reasonable for the seller due to the delay, he/she is entitled to withdraw from the contract and to charge the customer for his/her costs incurred, lost profit and other financial disadvantages resulting from the infringement of the industrial property right.
- If a property right can be derived from the execution of a customer order, the seller reserves the right to claim this right exclusively for him/herself. In the event of a derivation of property rights requested by the customer, the customer must inform the seller immediately before the beginning of the derivation and must grant him/her the right of derivation.
Section 12: Final provisions
- If the customer is a merchant in the sense of the German Code of Commercial Law, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from the business relationship between the seller and the customer shall, at the seller’s discretion, be the seller’s registered office or the customer’s registered office. The exclusive place of jurisdiction for any legal action against the seller is the seller’s registered office. Mandatory legal provisions concerning exclusive places of jurisdiction shall remain unaffected by this provision.
- The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- The remaining parts of the contract remain binding even if individual provisions are legally invalid. This does not apply if adherence to the contract would constitute unreasonable hardship for the party.
- The customer acknowledges that the seller stores data from the contractual relationship in accordance with Section 28 of the German Federal Data Protection Act (BDSG) for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies, etc.) to the extent necessary for the fulfilment of the contract.