General terms and conditions of Köster Systemtechnik GmbH
§ 1 General regulations
- These General Conditions of Sale apply to all our business relations with our customers ("Buyer"). The General Terms and Conditions of Sale shall only apply if the Buyer is an entrepreneur (§ 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law. Our General Conditions of Sale apply in particular to contracts for the sale and/or delivery of movable goods (including any software contained therein; for the purposes of these General Terms and Conditions of Sale, the software is part of the goods in this respect), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the General Terms and Conditions of Sale in the version valid at the time of the Buyer's order or, in any case, in the version most recently communicated to him in text form, shall also apply as a framework agreement to similar future contracts, without us having to refer to them again in each individual case.
- Our terms and conditions of sale apply exclusively; we do not recognise any terms and conditions of the buyer that conflict with or deviate from our terms and conditions of sale or from statutory provisions unless we have expressly agreed to their validity in writing. Our silence with regard to conditions of the buyer shall not be deemed to be recognition or consent. Our terms and conditions of sale shall also apply if we accept the performance of the buyer without reservation or render our services without reservation in the knowledge that the buyer's terms and conditions conflict with or deviate from our terms and conditions of sale. Our terms and conditions of sale shall also apply instead of any terms and conditions of the buyer if these terms and conditions provide for our acceptance of the order as unconditional acceptance of the terms and conditions or if we deliver after the buyer has informed us of the validity of his terms and conditions, unless we have expressly waived the validity of our terms and conditions of sale.
- Legally relevant declarations and notifications of the buyer in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
- References to the validity of legal regulations are only of clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these Terms of Sale.
§ 2 Offers and contracts
- Our offers are always subject to change and non-binding. The conclusion of the contract still requires our written order confirmation.
- The order of the goods by the buyer is a binding offer of contract. We can accept this contractual offer - unless otherwise stated in the order - within fourteen (14) days of receipt of the order.
- The contract is concluded by our subsequent order confirmation.
- The buyer is already obliged to inform us inwriting before the conclusion of a contract if:
- the goods to be delivered are not to be exclusively suitable for normal use or the buyer assumes a certain suitability for use,
- the goods are used under unusual conditions or are exposed to special stress,
- he goods are used under conditions which present a particular health or safety risk,
- the goods are to be used outside Germany or are to be delivered to customers of the Buyer resident outside Germany, or.
- public statements made by the manufacturer or other third parties are decisive for the buyer's purchase decision.
- Our information on the goods (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances, and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They do not constitute guarantees of quality or durability of the goods to be delivered by us. Any guarantees which are to be assumed by us at the time of the conclusion of the contract require an express written confirmation as a "guarantee".
- Deviations that are customary in the trade and deviations that are based on legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible, provided they do not impair the usability for the contractually intended purpose.
- With the exception of the acceptance of the goods in accordance with § 433 Para. 2 BGB, no acceptance of the goods is agreed.
- With the conclusion of the contract, we do not assume any procurement risk within the meaning of § 276 BGB even if we are obliged to deliver goods of a certain type only. Furthermore, we do not assume any guarantee for the goods.
- All agreements made between us and the buyer for the purpose of executing this contract at the time the contract is concluded are set out in writing in the contract and these terms and conditions of sale.
- We reserve all property rights and copyrights to samples, illustrations, drawings, calculations and other documents which we have made known or provided to the buyer. This also applies to such written documents which are designated as "confidential". The buyer requires our express written consent before passing them on to third parties.
§ 3 Delivery, delivery time
- Except where otherwise agreed regarding delivery, delivery shall take place EXW Iserlohn, Incoterms 2020. The dispatch of our goods is expressly at the expense and risk of the buyer.
- The transfer of risk takes place upon delivery. If delivery is delayed because we exercise our right of retention as a result of the buyer's total or partial default of payment, or for any other reason attributable to the buyer, the risk shall pass to the buyer no later than from the date of receipt of notification of readiness for shipment and/or performance in relation to the buyer.
- Commencement of the delivery time stated by us presupposes the clarification of all technical questions. Furthermore, compliance with our delivery obligation presupposes the timely and proper fulfilment of all obligations of the buyer. We reserve the right to raise the defence of non-performance of the contract.
- We are entitled to make partial deliveries and render partial services within the agreed delivery periods or by the agreed delivery date, provided this is reasonable for the buyer.
- If the buyer wishes to make changes to the goods after conclusion of the contract, this will lead to an extension of the delivery period - provided we agree to these changes, which we are not obliged to do. Depending on the order situation, the period of extension may be longer than would be necessary for the mere implementation of the change requests.
§ 4 Withdrawal in case of default, compensation for damages in case of default
- If we are unable to meet binding delivery periods or delivery dates for reasons for which we are not responsible (non-availability of the service), we shall inform the buyer of this immediately and at the same time inform him of the expected new delivery period or date. If the service is also not available within the new delivery period or on the new delivery date for reasons for which we are not responsible, we are entitled to withdraw from the contract in whole or in part; we will reimburse any consideration already provided by the buyer without delay. A case of non-availability of performance in this sense shall be deemed to be, in particular, a situation in which we are not supplied in time by our supplier for reasons for which we are not responsible, despite proper congruent procurement (i.e. despite contractual agreement with our supplier with which the buyer's claim to performance can be fulfilled in accordance with the contract in terms of quantity, quality and performance period).
- If the buyer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to make further claims.
- The buyer shall only be entitled to withdraw from the contract due to delayed delivery and/or non-delivery if we are in default with the fulfilment of the main obligations incumbent on us or if we have in any other way substantially breached obligations established by the contract and if we are responsible for the default or breach of obligation. In order to bring about the delay, a written request to us to perform our services within a reasonable period of time is always required, even if the time of performance is determined by calendar. Otherwise, the statutory provisions shall apply to the occurrence of default.
- If we are in default of delivery in accordance with the statutory requirements, taking into account the provisions set out in these Terms and Conditions of Sale, and if the Buyer has claims for damages against us due to default, our liability in the event of default of delivery shall be limited to 0.5% of the net price agreed with the Buyer for each completed week of default of the goods that are not delivered or delivered late, up to a maximum of 5% of the net price agreed with the Buyer for the goods that are not delivered or delivered late. This shall not affect claims:
- due to fraudulent breach of contract,
- due to intentional and grossly negligent breach of contract,
- due to assumption of a procurement risk within the meaning of § 276 BGB,
- due to injury to life, body and health and
- in the event of liability under the Product Liability Act.
- Insofar as we bear the risk of transport, notwithstanding § 3 para. 1 of these Terms and Conditions of Sale, the buyer shall be obliged to notify the carrier of any externally recognisable loss or damage to the freight at the latest upon delivery by the carrier and to mark the loss or damage sufficiently clearly. If the loss or damage is not externally recognisable, the loss or damage must be notified to the carrier within seven (7) days of delivery at the latest and the loss or damage must be marked sufficiently clearly. The notification must be made in text form.
§ 5 Installation and assembly
- Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
- The buyer must take over and provide in good time at his own expense:
- all earthwork, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labour, building materials and tools,
- the goods and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants
- Energy and water at the point of use, including connections, heating and lighting
- suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances; furthermore, the buyer shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the erection personnel on the site
- Protective clothing and protective devices required due to special circumstances at the installation site.
- Prior to commencement of the assembly work, the buyer shall provide the necessary information on the location of concealed power, gas and water lines or similar installations as well as the necessary structural data without being asked.
- Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be levelled and cleared.
- If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the buyer shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
- The buyer must provide the supplier with a weekly statement of the hours worked by the assembly personnel and must immediately certify to the supplier that the assembly, installation or commissioning has been completed.
- If the supplier demands acceptance of the delivery after completion, the buyer must carry this out within two weeks. If this is not done, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the delivery has been put into use - if applicable after completion of an agreed test phase.
- The buyer must take over and provide in good time at his own expense:
§ 6 Prices
- Unless otherwise stated in our contract conclusion document (this is usually our order confirmation, in the case of binding offers this is our offer), our prices shall apply on the basis of EXW Iserlohn, Incoterms 2020.
§ 7 Terms of payment and Default in Payment
- The invoice amount is to be paid net within 30 days of invoicing and delivery. The buyer is obliged to pay the full purchase price without any discount on the date specified in our contract conclusion document (this is usually our order confirmation, in the case of binding offers this is our offer) or, if no such date is specified, on issue of the invoice to the account designated by us free of charge and expenses. If the buyer is in default of payment, we are entitled to demand interest on arrears at the usual current account interest rate. If a higher damage caused by delay can be proven, we are entitled to claim this. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
- Default in payment shall be governed by the statutory provisions. During default, the purchase price shall be subject to default interest at the respective valid statutory rate. We reserve the right to assert further damages for loss caused by default. In relation to merchants, our claim to commercial overdue payment interest under Section 353 HGB [German Commercial Code] shall remain unaffected.
- The buyer is only entitled to offsetting and retention rights if his counterclaims have been legally established, are undisputed or recognised by us or are based on the same contractual relationship.
- If the buyer fails to pay due invoices, periods allowed for payment are exceeded, or its financial situation deteriorates after the conclusion of the contract, or we receive, after the conclusion of the contract, information that calls into question the buyer's ability to pay or its credit-worthiness, we shall be entitled to (a) declare due the buyer's total residual debt and, in modification of the agreements made, demand advance payment or provision of security, (b) demand, after the delivery has taken place, immediate payment of all our claims based on the same legal relationship, and (c) invoke the defence of uncertainty under Section 321 BGB.
§ 8 Warranty
- We expressly point out that our information and statements are made to the best of our knowledge. However, function and use are the sole responsibility of the user, who must check the perfect suitability of our products for his application before any intended use. We make no express or implied warranty for the suitability, function, or merchantability of the user products for a specific or general use and cannot be held liable for any accidental or consequential damage in case of non-observance.
- The buyer's claims for defects shall only exist if the buyer has properly fulfilled his obligations to inspect and give notice of defects in accordance with §§ 377, 381 HGB. If there is a defect in the goods for which we are responsible, we are obliged to provide subsequent performance, excluding the rights of the buyer to withdraw from the contract or to reduce the purchase price (reduction), unless we are entitled to refuse subsequent performance on the basis of the statutory provisions. The buyer shall grant us a reasonable period of time for subsequent performance. Subsequent performance can be affected at our discretion by eliminating the defect (rectification of defects) or by delivering new goods. We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold a reasonable part of the purchase price in relation to the defect. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour, and material costs (not: dismantling and installation costs), shall be borne by us if a defect actually exists. Otherwise, we can demand reimbursement from the buyer of the costs incurred as a result of the unjustified demand for the removal of defects (in particular testing and transport costs), unless the lack of defect was not recognisable to the buyer.
- If the supplementary performance has failed, the buyer may, at his discretion, demand a reduction of the purchase price (abatement) or declare his withdrawal from the contract. The rectification of defects shall be deemed to have failed after the second unsuccessful attempt unless further attempts at rectification of defects are appropriate and reasonable for the buyer on the basis of the subject matter of the contract.
- The right of the buyer to assert further claims for damages remains unaffected.
- The Buyer's warranty claims shall become statute-barred one year after delivery of the goods to the Buyer, unless we have fraudulently concealed the defect; in this case the statutory provisions shall apply.
- If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the Buyer's lack of ability to pay, we are entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract of § 321 BGB. In the case of contracts for the manufacture of unacceptable items (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 9 Reservation of rights of ownership
- The goods sold remain our property until all our present and future claims arising from the purchase contract and the current business relationship (secured claims) with the buyer have been paid in full. The buyer is authorised to dispose of the purchased goods in the ordinary course of business. The retention of title also extends to the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If a third party's right of ownership remains in effect after processing, mixing, or combining with goods of a third party, we shall acquire co- ownership in proportion to the invoice values of these processed goods. In these cases, the buyer shall be deemed the custodian.
- The buyer hereby assigns to us as security all claims against third parties arising from the resale of the goods, either in full or in the amount of our possible co-ownership share (see clause 8.1). He is authorised to collect them for our account until revocation or suspension of his payments to us. The buyer is not authorised to assign these claims.
- The buyer is prohibited from pledging or assigning the reserved goods as security.
- The buyer must inform us immediately of any seizure or other impairment of our rights by third parties.
- In the event of a delay in payment or a deterioration in assets, we are entitled to demand the immediate surrender of the reserved goods. Temporary claims become due immediately.
- If the value of the securities exceeds our claims by more than 10%, we will release securities of our choice in the corresponding amount on request.
§ 10 Software
- Insofar as software is included in the scope of delivery, the buyer is granted a non- exclusive right to use the delivered software including its documentation. It is provided for use on the goods intended for this purpose. Use of the software on more than one system is prohibited.
- The buyer may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG [Copyright Act]). The buyer undertakes not to remove manufacturer's details, copyright notices, or to change them without our prior express consent.
- All other rights to the software and the documentation, including copies, remain with us or the software supplier. The granting of sub-licenses is not permitted.
§ 11 Export clause
- We are not obliged to compensate for damages to the customer or other persons resulting from delays in delivery or the complete impossibility of delivery as a result of legal or official export restrictions unless we act with intent or gross negligence. The customer's obligation to pay the agreed remuneration shall remain unaffected by the occurrence of performance disruptions as a result of export restrictions. We have the right to withdraw from the contract if, after the conclusion of the contract, there are disruptions in performance as a result of export restrictions.
§ 12 Place of performance, place of jurisdiction and applicable law
- Place of performance and jurisdiction for deliveries and payments as well as all disputes arising between us and the buyer is our registered office in Iserlohn.
- The relationship between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of international uniform law, in particular the provisions of UN sales law.
As of: 12.10.2020