General Terms and Conditions of Sale, Delivery and Payment
General Terms and Conditions of Sale, Delivery and Payment
of Friedr. Krollmann GmbH & Co. KG
Status as of: 1 April 2009
§ 1 Area of Application
(1) Our General Terms and Conditions of Sale, Delivery and Payment (hereinafter shortly referred to as: Terms and Conditions of Sale) shall apply exclusively; any terms and conditions of the customer which contradict or deviate from our Terms and Conditions of Sale shall not be recognised by us, unless we explicitly agreed in writing to the applicability of such terms and conditions. Our Terms and Conditions of Sale shall also apply in cases in which we carry out the delivery to the customer without any reservations despite knowing that the customer’s terms and conditions contradict to or deviate from our Terms and Conditions of Sale.
(2) Any and all agreements concluded between us and the customer for the purpose of executing this agreement shall be recorded in writing in this agreement.
(3) Our Terms and Conditions of Sale shall apply only towards companies within the meaning of § 310 Para. 1 BGB (German Civil Code).
(4) Our Terms and Conditions of Sale shall also apply to any and all future transactions concluded with the customer.
Quotation and Quotation Documents
(1) Our quotation shall be subject to change. If any order of the customer is to be qualified as a quotation in accordance with § 145 German Civil Code, then we may accept this quotation within a period of two (2) weeks.
(2) We shall reserve any proprietary rights and copyrights to any illustrations, drawings, pricings and other documents as well as samples. The same shall also apply to any written documents identified as “confidential”. The customer shall require our explicit prior written approval before such documents may be forwarded to any third parties.
Prices and Terms of Payment
(1) Unless otherwise provided for in the confirmation of the order, our prices shall be “ex works” and exclude packaging, which shall be invoiced separately. We shall reserve the right to alter our prices to a reasonable extent provided that after conclusion of the contract cost reductions or cost increases, particularly due to collective bargains or material price fluctuations, occur. Upon request, we shall provide the customer with evidence of such changes.
(2) The statutory value added tax shall not be included in our prices; it shall be shown separately in the invoice at the rate applicable at the time of invoicing.
(3) The deduction of any discounts shall require a special written agreement.
(4) Unless otherwise specified in the order confirmation, the purchase prices shall be net prices (without deduction) and shall be due for payment within a period of thirty (30) days of the date of invoice. The statutory regulations concerning the consequences of late payment shall apply accordingly.
(5) The customer shall be entitled to any rights of off-set only if their counterclaims have been determined in a legally effective manner, if they are undisputed or if they have been acknowledged by us. The customer shall be entitled to rights of retention only if the conditions mentioned above have been met.
Customer’s Duties of Cooperation and Provision
(1) The customer must fully provide us with all relevant facts relating to the execution of our delivery and/or performance of our services. We shall not be obliged to verify the completeness and correctness of any data, information or other services made available to us by the customer to the extent that there is no need for such verification when taking into account the respective circumstances of such individual case or if the obligation to verify such information has not been assumed explicitly as a contractual obligation.
(2) To the extent that any work is to performed on the customer’s premises, our staff must at no charge be provided with the required workplaces (including heating, power, water, etc.), the necessary equipment and heavy tools (e.g. lifting gear, compressors) and consumption items and materials (e.g. assembly wood, wedges, packing, lubricants, fuels). The purchaser must in particular make the material to be processed on the machines supplied by us available for working-in and test purposes. The customer must protect the materials and tools we supply against any harmful effects.
(3) The customer shall as a major contractual duty assume the responsibility for any and all agreed performances or cooperation and provision performances arising out of the nature of the matter being provided in the required quality and at the agreed times without any additional cost to us. Insofar as necessary, they must make their own personnel available to this extent.
Delivery Time and Delayed Delivery
(1) The commencement of our stated delivery dates shall require the clarification of any and all technical questions. If, in addition, there has been any agreement on any advance payment on the part of the customer at the time the contract is concluded, then the commencement of the delivery date shall require a timely execution of such advance payment.
(2) The fulfilment of our delivery obligations further requires the punctual and proper fulfilment of the customer’s duties. The objection of non-fulfilment of the contract shall remain reserved.
(3) Within the scope of reasonableness for the customer, we shall be entitled to make part shipments.
(4) If the customer delays acceptance or otherwise culpably breaches any duties of cooperation, then we shall be entitled to demand that the loss we incur to this extent, including any additional expenses, be refunded. We shall reserve the right to make further claims.
(5) Insofar as the conditions set out in Section (4) have been met, the risk of any accidental destruction or accidental worsening of the purchased item shall be transferred to the customer at that point in time where they have delayed acceptance or where their performance as the debtor becomes delayed.
(6) In the event of delayed delivery, the customer shall be entitled to demand a lump sum compensation for default. Such compensation shall amount to 0.5% for each completed week of the delay, but no more than 5% in total of the price for that part of the delivery which could not be usefully commissioned in accordance with contract as a result of such delay.
Any further statutory claims of the customer for delayed delivery shall remain unaffected. Any further claims for damages in the event of delayed delivery, however, shall be governed exclusively in accordance with Clause 9 of these Terms and Conditions of Sale.
Condition of Deliveries to Us and Force Majeure
(1) The condition of correct and punctual deliveries to us as the supplier shall remain reserved.
(2) In the event of force majeure and other obstacles to performances that we could not have foreseen and for which we were not responsible – including labour disputes, scarcity of raw materials, interruptions to operations, transport obstacles, official measures – each also affecting our suppliers – we shall be entitled to postpone the delivery for as long as the obstacle to the performance obtains. We shall immediately inform the customer about the unavailability or the delayed availability of the item to be supplied and in the event of withdrawal immediately refund the customer’s counter performance without delay.
Transfer of Risks
(1) Unless otherwise stated in the confirmation of order, deliveries “ex works” shall be deemed to have been agreed upon. The risk of any accidental destruction or accidental worsening shall also pass to the customer on dispatch should we have assumed the dispatch costs or any other additional performances or make a part shipment.
(2) Insofar as acceptance is to be made, such acceptance shall be decisive to the transfer of risk.
(3) Insofar as the customer requires so, we shall cover the shipment with a transport insurance; the costs incurred to this extent shall be borne by the customer.
Claims in the Event of Defects
(1) Claims in the event of defects on the part of the customer shall be conditional to the customer having properly fulfilled their inspection and complaint duties to which they are bound by § 377 HGB (German Commercial Code).
(2) Insofar as the purchased item is defective, we at our discretion shall be entitled to make subsequent performance in the form of remedying such defect or delivering a new item free of defects. In the event of the defect being remedied, we shall be obliged to bear any and all expenses, in particular transport, travel, work and material costs, required for the purposes of remedying the defect insofar as such costs do not increase as a result of the purchased item having been moved to a place other than the place of fulfilment.
(3) If subsequent performance fails, the customer shall be entitled to make the other statutory claims relating to defects. The customer shall be able to make claims for damages only in accordance with Clause 0 of these Terms and Conditions of Sale.
(4) Any claims of the customer in the event of defects shall be subject to a period of limitation as set out in § 10 Para. (1) of Terms and Conditions of Sale.
(1) We shall be liable for damages exclusively on the basis of the following provisions:
(2) We shall be liable in accordance with the statutory provisions insofar as the customer makes any claims for damages that are based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents. Insofar as we cannot be charged with intentional or grossly negligent breach of contract, the liability for damages shall be limited to the foreseeable typically occurring loss.
(3) We shall be liable in accordance with the statutory provisions insofar as we culpably breach any material contractual duty; in this event, however, such liability for damages shall be limited to the foreseeable typically occurring loss.
(4) Insofar as the customer is entitled to replacement of the loss instead of the performance, our liability shall also be limited within the scope of Section (3) to replacement of the foreseeable typically occurring loss.
(5) Any liability for culpable injury to life, limb or health remains unaffected; this shall also apply to any mandatory liability in accordance with the German Product Liability Act, as well as any liability within the scope of any guarantee.
(6) The above liability limitations shall also apply in the event that the customer instead of a claim for compensation of the loss demands the replacement of wasted expenses in place of the performance.
(7) To the extent that any compensation liability towards us is excluded or limited, this shall also apply in view of the personal liability for damages by our employees, workers, staff, representatives and vicarious agents.
Period of Limitations
(1) The period of limitation for any claims arising out of defects shall be twelve (12) months from the start of the statutory period of limitation.
(2) An exclusion time limit of eighteen (18) months shall apply to the period of limitation for any other claims on the part of the customer that are not subject to the period of limitation for claims arising out of defects. It shall commence from the time of knowledge of the damage and the identity of the person causing the damage.
(3) The above provisions shall not affect the statutory periods of limitation in the following cases:
– in the event of any delivery bottleneck in accordance with §§ 478, 479 BGB;
– for any defects to structures / construction materials set out in §§ 438 Para. 1 No. 2; 634a Para. 1 No. 2 BGB;
– for any damages arising out of the culpable injury to life, limb or health;
– for cases of intent and/or deceit or gross negligence by us, our legal representatives or vicarious agents ;
– for the customer’s right to withdraw from the contract in the event of any breach of duty for which we are responsible and which does not lie in any defect in the purchased item or the works;
– for any mandatory liability in accordance with the German Product Liability Act;
– for any claims within the scope of any guarantee.
Reservation of Ownership
(1) We shall reserve ownership in the purchased item until receipt of all payments arising out of the business relationship with the customer. In the event of the customer breaching the contract, particularly in the event of payment arrears, we shall be entitled to take back the purchased item. The retrieval of the purchased item by us shall constitute a withdrawal from the contract. After retrieval of the purchased item, we shall be entitled to its utilisation; the revenue from such utilisation must be set off against the customer’s liabilities – minus any reasonable costs of utilisation.
(2) The customer shall be obliged to treat the purchased item with care; the customer shall, in particular, be obliged to sufficiently insure the item at their own cost against damage by fire, water and theft at the value of the new item. Insofar as maintenance and inspection work is necessary, the customer must carry out such work on time and at their own cost.
(3) In the event of any seizures or other interventions by any third parties, the customer must immediately notify us in writing in order to enable us to take action in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not able to reimburse us for the court and out-of-court costs of such action in accordance with § 771 ZPO, the customer shall be liable for any losses we suffer.
(4) The customer shall be entitled to resell the purchased item within the ordinary course of business; however, they already assigns to us the equivalent of the final invoiced total (including VAT) of our claim that they gain from the resale against their purchasers or third parties irrespective of whether the purchased item has been resold without or after further processing. The customer shall remain entitled to recover such claim even after its assignment. Our authority to recover the claim ourselves shall remain unaffected by this. However, we shall undertake not to recover the claim for as long as the customer meets their payment duties from the revenues made, does not fall into arrears and particularly no application for court-composition or insolvency proceedings has been made or payments have been stopped. If this is the case, however, we shall be able to request the customer to inform us of the assigned claims and those owing them, provide us with all the information required for the collection, hand over the corresponding materials and inform the debtors (third parties) of the assignment.
(5) The processing or modification of the purchased item on the part of the customer shall always be carried out on our behalf. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership in the new item to the ratio of the value of the purchased item (total invoiced amount, including VAT) in relation to the other processed items at the time of processing. Otherwise, the same shall apply to the item created through processing as applies to the conditionally supplied purchased item.
(6) If the purchased item is mixed inseparably with other items not belonging to us, we shall acquire co-ownership in the new item to the ratio of the value of the purchased item (total invoiced amount, including VAT) in relation to the other processed items at the time of processing. If mixing is effected in such a way that the customer’s item must be regarded as the main item, it shall be deemed to have been agreed upon that the customer shall have assigned co-ownership to us on a proportional basis. The customer shall hold the thus created sole ownership or co-ownership on our behalf.
(7) The customer shall, for the purposes of securing our claims against it, also assign those claims against third parties that are created through the combination of the purchased item with real-estate to us.
(8) We shall undertake to release the securities to which we are entitled on request by the customer to the extent that the realisable value of our securities exceeds the value of our claims to be secured by more than 10%; the choice of the securities to be released shall be at our discretion.
(9) If any application is made on the part of the customer for insolvency proceedings to be opened, such application shall entitle us to withdraw the contract and demand the immediate return of the delivery item.
(1) A non-exclusive right of utilisation shall be granted to the purchaser insofar as software is included in the scope of delivery. The software shall be provided for use on the delivered item for which it is intended. Any use on more than one system shall be prohibited.
(2) The purchaser may only copy, revise and translate the software or convert the software’s object code to its source code to the legally permissible extent (§§ 69a et seqq. UrhG (German Copyright Law)). The purchaser shall undertake not to remove or modify any manufacturer information – particularly copyright information – without our prior consent.
(3) Any and all other rights to the software and documentation, including copies, shall remain with us and/or the software supplier. The awarding of any sub-licences shall not be permitted.
Place of Jurisdiction and Place of Fulfilment
(1) Insofar as the customer is a business person, our place of business in Altena (Westf.) shall be the place of jurisdiction; we, however, shall be entitled to also take action against the customer at the court of the customer’s domicile.
(2) The laws of the Federal Republic of Germany shall apply; the application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
(3) Unless otherwise specified in the confirmation of order, our place of business in Altena (Westf.) shall be the place of fulfilment.
(1) Should any individual provisions of the above provisions be or become ineffective, then this shall not affect the effectiveness of the remaining provisions. The ineffective provisions shall rather be replaced with such provisions that come closest to the commercial purpose of the contract while taking the interests of both parties into account.
(2) Any and all of our previous terms and conditions of sale and delivery have herewith become void.
Information in accordance with § 33 BDSG (German Federal Data Protection Act): the customer’s data shall be processed electronically.