General Business Terms
General Terms and Conditions of Business of Klotz GmbH
(As per 01.01.2007)
§ 1 – Applicability
1.1 These General Terms and Condition of Business shall apply to any and all offers, contracts, deliveries or other services, including consultancy ser-vices. They shall constitute the contractual basis for our business relations with the Purchasers of our products, and shall form part of the contract upon acceptance of the contractual offer (of an order). These Terms and Conditions of Business shall also apply to future business transactions with the Purchaser.
1.2 Terms and conditions of the Purchaser deviating herefrom which we do not expressly acknowledge in writing shall not be binding upon us even upon acceptance of order. A separate acknowledgement shall come into force only if we expressly agree to the applicability thereof in writing.
1.3 Any and all deviating agreements, collateral agreements and subsequent contractual amendments shall apply only if they are expressly confirmed in writing by an authorized representative.
§ 2 – Price and payment
2.1 In the absence of a special agreement, any and all prices shall apply “ex works”, including loading at the works, however, exclusive of packaging, freight, postage, insurance, other dispatch costs and unloading. Value-added tax in the respective statutory amount shall be added to the prices.
2.2 In the absence of a special agreement, payment shall be rendered without deduction to the account of the Supplier in accordance with the following:
• 30 % advance payment upon receipt of the advance invoice following receipt of order
• 60 % as soon as the Purchaser receives notification that the main parts are ready for dispatch
• 10 % following acceptance on the premises of the ultimate consumer, however, no later than 4 weeks following delivery
2.3 The Purchaser shall be entitled to withhold payments or to offset such payments with counterclaims only to the extent that his counterclaims are undisputed or have become res judicata.
§ 3 – Delivery period, delay in delivery
3.1 The delivery period shall be set forth in the agreements concluded by the contracting parties. Adherence thereto by the Supplier shall be subject to the proviso that any and all commercial and technical questions between the contracting parties have been clarified, and that the Purchaser has fulfilled any and all obligations incumbent on him, such as the provision of materials, purchased parts and work pieces to be furnished, the provision of any and all necessary information, technical details and parameters, the procurement of the necessary documents or technical drawings, the procurement of the necessary official certifications or permits, or the rendering of an advance payment. Should this not be the case, the delivery period shall be extended appropriately. This shall not apply to the extent that the Supplier bears responsibility for the delay.
3.2 The adherence to the delivery deadline shall be subject to correct delivery in due time by our own suppliers, unless we bear responsibility for incorrect or delayed delivery. The Supplier shall inform the Purchaser of any imminent delays without undue delay.
3.3 The delivery deadline shall be deemed adhered to if the delivery item leaves the Supplier’s works, or the readiness for dispatch of the said item has been communicated by the expiry of the said deadline. To the extent that an acceptance is to be carried out, the date of acceptance shall – with the exception of justified refusal of acceptance – be decisive, alternatively the date of notification regarding readiness for acceptance.
3.4 Should the dispatch and/or the acceptance of the delivery item be delayed for reasons for which the Purchaser bears responsibility, the costs incurred due to the delay – commencing one month following the notification regarding the readiness for dispatch and/or acceptance – shall be invoiced to him.
3.5 Should failure to adhere to the delivery period be attributed to force majeure, industrial disputes or other events which lie outside the Supplier’s sphere of influence, the delivery period shall be extended appropriately. The Supplier shall inform the Purchaser of the commencement and end of such circumstances without undue delay. In the event of failure to adhere to the delivery period on grounds for which we bear responsibility, claims to damages shall be excluded to the extent that these are not based on intent or gross negligence.
3.6 Partial deliveries shall be permitted to the extent that this can be reasonably expected of the Purchaser.
3.7 The Purchaser may withdraw from the contract without notice in the event that the performance in its entirety becomes conclusively impossible for the Supplier prior to the passage of the risk. In addition, the Purchaser may withdraw from the contract if, with respect to a delivery, the execution of one part of the delivery becomes impossible, and he has a justified interest in the rejection of the partial deliver. Should this not be the case, the Purchaser shall pay the price for this partial delivery as contractually agreed upon. The same shall apply in the event of the Supplier’s inability to perform. In other respects, item 7.2 shall apply. Should such impossibility or inability to perform occur during default of acceptance, or should the Purchaser be solely or primarily responsible for such circumstances, he shall remain obligated to give consideration.
3.8 Should the Supplier be in default and the Purchaser incur a loss herefrom, he shall be entitled to demand a lump-sum compensation for default. For every full week of delay, such compensation shall amount to 0.5 % in total, however, a maximum of 5 % of the value of such part of the entire delivery which, due to the delay, cannot be used in good time or as contractually agreed upon. Should the Purchaser grant the Supplier – in consideration of the statutory exceptions – an appropriate grace period for performance following the due date, and should this grace period not be complied with, the Purchaser shall be entitled to withdraw from the contract within the scope of the statutory provisions. Further claims from the default of delivery shall be exclusively defined in accordance with item 7.2 of these Terms and Conditions.
§ 4 – Passage of risk / acceptance
4.1 The risk shall pass to the Purchaser when the delivery item has left the works, including when partial deliveries follow, or the Supplier has assumed additional services, e.g. dispatch costs or delivery. To the extent that an acceptance of the delivery item is to take place, this shall be decisive for the passage of risk to the extent that the Supplier has, upon request by the Purchaser, not dispatched the item in question to another venue other than the place of performance. In this event, the risk shall pass to Purchaser as soon as the Supplier hands over the delivery item to the forwarding agent, carrier or any other party commissioned with the dispatch.
4.2 Should the dispatch and/or acceptance be delayed or fail to take place due to circumstances which are not attributable to the Supplier, the risk shall pass to the Purchaser as of the day on which the readiness for dispatch and/or acceptance is communicated. The Supplier shall undertake to conclude insurance policies at the expense of the Purchaser as per his request.
§ 5 – Reservation of title
5.1 The delivered goods shall remain our property until the full satisfaction of any and all claims from the business relationship, regardless of the legal grounds.
5.2 The Supplier shall be entitled to insure the delivery item against theft, breakage, fire, water and other forms of damage at the expense of the Purchaser to the extent that the Purchaser has not demonstrably concluded such insurance himself.
5.3 Prior to the passage of title, the Purchaser may neither sell or pledge the delivery item, nor assign it by way of security. In the event of pledges as well as confiscation or any other forms of disposal by third parties, the Purchaser shall inform the Supplier thereof without undue delay.
5.4 In the event of conduct on the part of the Purchaser in breach of contract, in particular default of payment, the Supplier shall be entitled to take back the delivery item following a reminder notice, and the Purchaser shall be obliged to surrender the said item.
5.5 Due to the reservation of title, the Supplier may demand back the delivery item only when he has rescinded the contract.
5.6 The filing for commencement of insolvency proceedings shall entitle the Supplier to withdraw from the contract and demand the immediate return of the delivery item.
5.7 The customer shall be entitled to resell the contractual object in the ordinary course of business to the extent that he is not in default of payment; he shall hereby assign to the Supplier any and all claims in the amount of the final invoice amount claimed by the Supplier (including value-added tax) which he accrues vis-à-vis his buyers or third parties from the re-sale; this shall apply independently of whether the contractual object has been re-sold without or following processing. The Supplier shall accept such assignment. The customer shall be authorized to collect this claim even after the assignment. The Supplier’s authorization to collect the claim himself shall not be affected hereby. The Supplier shall undertake not to collect the claim as long as the customer fulfills his payment obligations arising from the respective contractual relationship, is not in default of payment, and in particular, the commence-ment of insolvency proceedings has not been filed for, or there is a suspension of payments. Should this be the case, however, the Supplier may demand that the customer disclose the assigned claims and the pertinent debtors, provide any and all information necessary for collection, hand over the pertinent documents, and inform the debtors (third parties) of the assignment.
5.8 With respect to samples, cost estimates, sketches and similar information, whether of corporeal or incorporeal nature – including in electronic form –, the Supplier reserves the copyrights and proprietary rights. They made not be made accessible to third parties. The Supplier shall make accessible to third parties any and all information and documents designated as confidential by the Purchaser only with his consent thereto.
§ 6 – Claims for defects
With respect to material defects and defects of title, the Supplier shall, under exclusion of further claims – Section 7 notwithstanding – offer guarantee as follows:
6.1 Material defects
6.1.1 Any and all parts which prove to be defective due to a circumstance existing prior to the passage of risk shall, at the discretion of the Supplier, be repaired or replaced free of defects. The Purchaser shall notify the Supplier in writing of any and all discernible defects, shortfalls in quantity, or incorrect deliveries without undue delay, however, no later than three days following delivery. Should a defect be discerned at a later point in time, the Purchaser shall report such defect in writing without undue delay, however, no later than three days after discovery. Should the Purchaser fail to make such notification in good time, the delivery item shall be deemed as accepted free of defects, and approved. Replaced parts shall become the property of the Supplier.
6.1.2 In order that the Supplier may render any and all subsequent improvements and replacement deliveries which he considers necessary, the Purchaser shall, following consultation with the Supplier in this regard, grant him the required time and opportunity, failing which the Supplier shall be released from liability for the consequences arising therefrom. Only in urgent cases where there is a risk to operational safety and/or for the prevention of dispro-portionately extensive damage – whereby the Supplier is to be notified immediately – shall the Purchaser be entitled to remedy the defect himself or to have such defect remedied by a third party, and to demand from the Supplier the reimbursement of the necessary expenditures.
6.1.3 With respect to the direct costs incurred due to subsequent improvement and/or replacement delivery, the Supplier shall – to the extent that the complaint proves to be justified – assume the costs for the replacement part, including dispatch costs. He shall, in addition, assume the costs for the disassembly and installation, as well as the costs for the provision of any necessary technicians and assistants, including travel expenses, to the extent that this does not entail a disproportionate burden for the Supplier.
6.1.4 The Purchaser shall, within the scope of the statutory provisions, be entitled to rescind the contract if the Supplier – under consideration of the statutory exceptions – allows an appropriate grace period set for the subsequent improvement or replacement delivery to lapse fruitlessly. Should the defect be only insignificant in nature, the Purchaser shall merely be entitled to a reduction of the contractual price. The right to reduction of the contractual prices shall otherwise be excluded. Further claims shall be defined in accordance with item 7.2 of these Terms and Conditions.
6.1.5 No guarantee shall be assumed for the following cases in particular: unsuitable or improper use, faulty assembly or operation by the Purchaser or third parties, natural wear and tear, incorrect or negligent treatment, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electro-chemical or electrical influences – to the extent that the Supplier may not be held responsible therefor.
6.1.6 Should the Purchaser or a third party render improper subsequent improvement, the Supplier shall not be held liable for any consequences arising therefrom. The same shall apply to alterations carried out on the delivery item without the prior consent of the Supplier.
6.2 Defects of title
6.2.1 Should the use of the delivery item lead to an infringement of industrial property rights or copyrights in the Federal Republic of Germany, the Supplier shall, in principle and at his own expense, procure for the Purchaser the right to continued use, or modify the delivery item in a manner that can be reason-ably accepted by the Purchaser so that the infringement of the property right is no longer given. Should this not be possible at economically reasonable conditions or within an appropriate period of time, the Purchaser shall be entitled to withdraw from the contract. Under the named pre-requisites, the Supplier shall also be entitled withraw from the contract. The Supplier shall, moreover, indemnify the Purchaser against undisputed claims or claims that have become res judicata asserted by the property-right holders in question.
6.2.2 The Supplier’s obligations named in item 6.2.1 shall, subject to item 7.2, be deemed exhaustive with respect to infringement of property rights and copyrights. They shall exist only if
• the Purchaser notifies the Supplier without undue delay of any asserted infringements of property rights and copyrights,
• the Purchaser supports the Supplier to an appropriate extent with respect to the defense against the asserted claims and/or allows the Supplier to carry
out the modification measures in accordance with item 6.2.1,
• any and all defense measures, including out-of-court settlements, remain reserved to the Supplier,
• the defect of title is not based on an instruction issued by the Purchaser,
• the infringement of rights is not caused by the Purchaser having altered the delivery item or having used it in a manner not contractually agreed upon
§ 7 – Liability
7.1 If the delivery item cannot be used by the Purchaser in the manner contractually agreed upon through fault on the part of the Supplier due to omitted or defective implementation of proposals and advice given prior to the conclusion of contract, or due to the breach of other collateral obligations contractually agreed upon – in particular instructions for the operation and maintenance of the delivery item -, the regulations of section 6 and item 7.2 shall apply mutatis mutandis under exclusion of further claims by the Purchaser.
7.2 With respect to damage which has not occurred on the delivery item itself, the Supplier shall be held liable, irrespective of the legal grounds, only
a) for intent,
b) for gross negligence on the part of the owner / the corporate bodies or executive staff,
c) for culpable injury to life, limb, health,
d) for defects which he has maliciously concealed or the absence of which he has guaranteed,
e) in the event of mandatory liability pursuant to the German Product Liability Act [Produkthaftungsgesetz].
In the event of culpable breach of essential contractual obligations, the Supplier shall also be held liable for gross negligence on the part of non-executive staff. In the event of breach of obligations due to slight negligence, liability shall be limited to reasonably foreseeable damage typical to the contract to the extent that an infringement of essential contractual obligations (cardinal obligation) is not involved. The liability for foreseeable damage typical to the contract shall be limited to the amount of the purchase price agreed upon. Further claims shall be excluded.
§ 8 – Limitation period
Any and all claims by the Purchaser – irrespective of the legal grounds – shall become statute barred in 12 months. With respect to claims for damages pursuant to item 7.2 a – e, the statutory periods shall apply. They shall also apply to defects of a building or to delivery items which were used for a building in accordance their customary manner of use and caused the building’s defectiveness.
§ 9 – Software use
9.1 To the extent that the scope of delivery includes software, the Purchaser shall be granted a non-exclusive right to use the delivered software, including its documentation. The software shall be provided for use on the delivery item intended for this purpose. The use of the software on more than one system is not permitted.
9.2 The Purchaser shall be entitled to copy, re-work or translate the software, or convert it from the object code to the source code only to the extent legally permitted (§§ 69 a et seq. of the German Copyright Act [Urheberrechtsgesetz]). The Purchaser shall neither remove manufacturer information – in particular copyright statements –, nor amend these without the prior express consent of the Supplier.
9.3 Any and all other rights to the software and the documentation, including copies thereof, shall remain with the Supplier and/or the software supplier. The granting of sub-licenses is not permitted.
9.4 The regulations of item 5.8 shall apply mutatis mutandis.
§ 10 – Applicable law, place of jurisdiction
10.1 With respect to any and all legal relations between the Supplier and Purchaser, the law of the Federal Republic of Germany authoritative for the legal relations of domestic parties with respect to one another shall apply exclusively.
10.2 With respect to any and all legal disputes which arise from the contractual relations between the parties hereto, the Local Court [Amtsgericht] of Günzburg or the Regional Court [Landgericht] of Memmingen shall be responsible, depending on the statutory threshold for the amount in dispute. In addition, Kötz shall be expressly deemed the place of performance.
10.3 To the extent that individual regulations are ineffective, such ineffectiveness shall be restricted to the respective clause. The ineffective clause shall then be replaced by an effective clause that comes closest to the economic sense and purpose of the ineffective regulation. This shall apply mutatis mutandis to any and all loopholes contained in these Terms and Conditions.