General Terms and Conditions of Business of Kliewe GmbH
§ 1 General/Scope of application
- Our General Terms and Conditions (hereinafter referred to as GTCs) shall apply exclusively; we do not accept any terms and conditions of the Customer which differ from our GTCs, unless we have expressly agreed to their validity in writing. Our GTCs shall also apply if we deliver our service to the Customer unconditionally with knowledge of conditions by the Customer which are contradictory to or deviating from our GTCs.
- Our GTCs shall only apply to companies within the meaning of § 24 AGB-Gesetz (German law on General Standard Terms and Conditions).
- Deliveries, services and offers are made exclusively on the basis of these terms and conditions. These shall also apply to all future business relations, even if they are not expressly agreed again; this shall apply in particular to subsequent and supplementary contracts.
- In addition to these terms and conditions, VOB parts A, B and C shall apply to all contracts concluded with us insofar as they are construction work within the meaning of § 1 VOB / A and unless otherwise agreed in these GTCs. In addition, the applicable valid rules for technology shall apply, insofar as they are pertinent to the security of deliveries and services.
§ 2 Offer, conclusion of contract and contract terms
- If an offer is to be qualified according to § 145 BGB, we may accept it within a period of 4 weeks.
- We retain the title and copyrights to illustrations, drawings, sketches, calculations and other documents. This shall also apply to such written documents which are described as confidential. Prior to their transfer to third parties, the Customer/Contracting Party requires our express written consent.
- Our descriptions, quotations and offers, unless otherwise expressly agreed, are subject to confirmation and non-binding. Declarations of acceptance and all orders shall require written or telegraphic confirmation on our part to be legally valid. The same shall apply to additions, amendments and collateral agreements. Information, particulars in brochures, leaflets, and application instructions or descriptions should only be informative and provide general knowledge. Unless otherwise agreed, they shall not be a part of the agreement. We reserve the right to serve the Customer without special written confirmation of order in cases deemed reasonable by us; should the Customer accept the goods or services in such cases, the Customer confirms that our GTCs apply without exceptions.
- We reserve the right to make technical changes in executing the order as far as the progress of technical development or in the individual case in the interest of the performance of the installation or other goods proves to be useful.
§ 3 Prices
- All prices quoted are applicable ex works exclusive of packaging and assembly, unless otherwise agreed.
- Irrespective of § 3 (1), we reserve the right to change our prices accordingly if, following the conclusion of the contract, reductions or increases in costs, in particular as a result of wage agreements or changes in the price of materials, public charges, ancillary charges or freight charges arise. We will provide proof of such to the Customer upon request. This shall not apply if a fixed price has been expressly agreed.
- Statutory VAT is not included in our prices; it shall be itemised separately in the invoice at the statutory rate on the date of the invoice.
§ 4 Terms of payment
- The deduction of any early payment discount requires special written agreement.
- Unless otherwise stated in the order confirmation, the purchase price is payable net (without deduction) upon receipt of the invoice.
- Should the Customer be in default of payment, we are entitled to demand default interest of 5% above the respective base rate of the European Central Bank p.a. Should we be able to prove a higher damage caused by delay, we shall be entitled to assert them. However, the Customer is entitled to prove to us that we have suffered no or a significantly lower loss as a result of the delay in payment.
- The Customer shall only be entitled to offset rights if his counterclaims are legally established, undisputed or acknowledged by us. In addition, he is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
- Checks, bills of exchange or other securities shall only be accepted on condition of customary reservation of their redemption, their discounting option, as well as against the assumption of all costs incurred by the contractual partner in connection with the redemption. Discount and exchange charges shall be borne by the Customer and shall be payable immediately.
- In the event of partial deliveries or partial services rendered, we are entitled to demand the corresponding partial payments.
- All of our claims will be due immediately, irrespective of the term of any bill of exchange and credited bills, if the terms of payment are not respected or circumstances become known which are likely to reduce the creditworthiness of our contractual partners.
- We shall be entitled to initially charge payments on older debts of the Contracting Party despite otherwise stated provisions of the Contracting Party. If costs and interest have already been incurred, we shall be entitled to charge the payment first on the costs, then on the interest and lastly on the main performance.
§ 5 Construction, maintenance or repair of installations
- Unless otherwise agreed in writing, the following conditions shall apply to all types of installation, assembly, repair and maintenance work:
- A.Our Contractual Partner has to take over and make available the following:
Sufficient, suitable, dry and lockable rooms and appropriate working and living areas, including sanitary facilities must be provided for the personnel with the necessary tools in the necessary number and for all non-operating secondary work including the required materials, operating force and water including the required connections up to the place of use, heating, etc. for storing machine parts, apparatuses, materials, tools, etc., In addition, our Contractual Partner must take those measures to protect our staff on the construction site which he would take to protect his own operation and to which he is legally obliged. Protective clothing and protective devices, which are necessary as a result of special circumstances on the construction site and which are not customary for us as Contractors, must be provided.
- Before starting the work, our Contractual Partner must provide the necessary information about the location of hidden power, gas and water lines or similar installations as well as necessary other information without being requested to do so.
- Unless agreed otherwise, our Contractual Partner is obliged to certify our workers or staff have performed the work either in a daily or weekly basis, according to our choice. He also confirms the completion of the work on forms submitted by us.
- Should parts delivered by us are removed or replaced, they will be returned to our possession without compensation in the absence of a special agreement, with the exception of parts and components which must be properly disposed of in accordance with environmental requirements.
- The following conditions shall be deemed to be agreed upon in addition to the provisions of A for installation, assembly, repair or maintenance work carried out and invoiced individually.
- Our contractual partner compensates us for the billing rates for working hours and surcharges agreed for working overtime, on Sundays, public holidays, for unprepared longer hours of work, for work performed under difficult circumstances as well as for planning and monitoring. This also applies to the consumption of material including waste, as well as to the construction and connection of the installation.
- Preparation time and duration as well as confirmations are considered to be working hours, whereby personnel and vehicle costs in particular shall be calculated for journeys to and from the site at the actual expenses incurred, unless otherwise agreed.
- The following costs shall also be paid: travel costs, transport costs for tools and all personal luggage, for freight and packaging, for the delivery of all materials and equipment, as well as ordered technical documents, at our usual, e.g. collective bargaining agreement and allowances for working time and for days of rest and holidays.
§ 6 Period of delivery and performance, delivery
- Information on delivery times and dates is only approximate, unless we have expressly declared them binding in writing.
- The start of the delivery time stated by us is preceded by the clarification of all technical questions.
- Compliance with our delivery obligation also requires the timely and proper fulfilment of the obligations by the Contractual Partner. Objection to the unfulfilled agreement remains reserved.
- Should the Customer be in default of acceptance or if he violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred, including any extra charges. We reserve the right to make further claims.
- If the prerequisites of item 4 have been proven to exist, the risk of accidental loss or accidental deterioration of the purchased goods is transferred to the Customer at the time at which the latter is in default of acceptance or default.
- In case of force majeure and other unavoidable, extraordinary and no-fault circumstances, e.g. in the event of difficulties procuring material, interrupted operations, a strike, lockout, lack of transport, official interferences, energy supply problems, etc. – even if they occur with subcontractors – Supplier is hindered in legally fulfilling his obligation, the delivery period by the duration of the hindrance as well as a so-called start-up time. If the delivery or the performance becomes impossible or unacceptable due to the stated circumstances, the Supplier shall be released from the delivery obligation. In such cases, the Customer is not entitled to claim damages. The Supplier can only invoke the above-mentioned circumstances if he has informed the Customer immediately.
- We are entitled to partial deliveries and partial services at any time.
- If no agreement has been made between us and the Customer, we shall do so at our discretion, without the obligation to choose the most favourable way of sending the goods.
Furthermore, we shall be liable according to the statutory provisions if the delay in delivery is based on an intentional or grossly negligent breach of contract which we are responsible for; we shall be held accountable for a fault of our representatives or vicarious agents, insofar as this is intentional or grossly negligent. If the delay in delivery is not based on an intentional breach of contract for which we are responsible, our compensation shall be limited to the foreseeable typically occurring damage.
We shall also be liable according to statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable violation of a fundamental contractual obligation; In this case, the liability for damages shall be limited to the foreseeable, typically occurring damage.
§ 7 Reservation of title
- We reserve the title to the object of purchase or to the delivery item (hereinafter referred to as the “Item”) until receipt of all payments from the delivery contract have been made. In case of breach of contract by the Customer, in particular in case of default of payment, we are entitled to take back the Item. Repossession of the Item by us does not constitute a withdrawal from the contract, unless we had expressly declared this in writing. Seizure of the of the Item by us always constitutes a withdrawal from the contract. After the goods have been repossessed, we are entitled to use them, the proceeds from the sale must be credited to the liabilities of the Customer less appropriate costs of realization.
- The Customer is obligated to handle the purchased item or the work carefully; in particular, he is obliged to insure these at his own expense against fire, water and theft damage at the original value. The Customer shall carry it out any maintenance and inspection work required in good time at his own expense.
- In case of seizures or other interventions by third parties, the Customer must notify us immediately in writing so that we can take legal action pursuant to § 771 ZPO (German Code of Civil Procedure). Should the third party be unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Customer shall be liable for the loss incurred by us.
- The Customer shall be entitled to resell the goods in the ordinary course of business; however, he transfers all claims in the amount of the final invoice amount (including value-added tax) to us now, arising from the resale against his customers or third parties, irrespective of whether the goods have been resold without or after processing. The Customer is also authorised to collect this claim after the transfer. Our authority to collect the claim itself shall remain unaffected. However, we shall not undertake to collect the claim as long as the Customer complies with his payment obligations from the revenues collected and is not in arrears with payment and, in particular, no application for the opening of a bankruptcy or settlement or insolvency proceedings is filed or payment is settled. However should this be the case, we can demand that the Customer notify us of the transferred claims and their debtors, provide all necessary information for collecting the claim, hand over the related documents and notify the debtors (third parties) of the transfer.
- The processing or restructuring of the Item by the customer shall always performed for us. If the Item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the item (final invoice amount including VAT) to the other processed items at the time of processing. Moreover, the same shall apply to the Item resulting from processing as for the delivered Item with reservation.
- If the Item is inseparably mixed with other objects which do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the original item (final invoice amount including VAT) to the other mixed items at the time of the mixing. If the mixing is carried out in such a way that the Customer’s Item is considered to the main item, then it is agreed that the Customer shall transfer proportionately co-ownership to us. The Customer shall hold the resulting sole proprietorship or co-ownership for us.
The Customer shall also transfer claims for securing our claims against him to us which arise through the combination of the Item with a property against a third party.
We undertake to release the collateral to which we are entitled insofar as the realisable value of our collateral exceeds the claims to be secured by more than 10%; we shall be responsible for choosing the collateral to be released.
§ 8 Risk transfer – packaging costs
- Unless otherwise stated in the confirmation of order, or other written agreements have been made, delivery “ex works” shall be agreed.
- Transport and all other packaging in accordance with packaging regulations are not accepted; the except is pallets. The Customer is obliged to dispose of the packaging at his own expense.
- If the Customer wishes, we will cover the delivery by means of a transport insurance; the Customer shall bear the costs incurred in such cases.
§ 9 Warranty for defects/Compensation for damages
- The Customer’s warranty rights assume that the Customer has properly complied with his inspection and complaint obligations pursuant to §§ 377,378 HGB.
- Should the delivered goods or service be deemed defective, we shall be entitled to rectify the defect or to provide a replacement delivery at our discretion. When remedying defects, we shall be obliged to bear all expenses necessary for remedying the defect, in particular transport, journey, labour and material costs, insofar as these do not increase due to the fact that the Item was moved to a place other than the place of performance.
- Should remedying the defect/providing a replacement delivery fail, then the Customer is entitled at his discretion to demand a revocation (cancellation of the contract) or a corresponding reduction of the purchase price (reduction). Should the Item lack a guaranteed property, we shall be liable for damages due to non-fulfilment in accordance with statutory provisions.
- We shall be liable according to legal regulations, if the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless deliberate breach of contract is involved, the liability for damages shall be limited to the foreseeable, typically occurring damage.
- We shall be liable according to legal regulations, as long as we are guilty of a fundamental contractual obligation; in this case, the liability for damages shall be limited to the foreseeable, typically occurring damage.
- Moreover, the liability for claims for damages is excluded; to this extent, we shall not be liable in particular for damages which are not caused by the delivery item itself.
The warranty period in § 13 VOB/B shall apply to services within the meaning of VOB/B. In the case of other deliveries and services, the warranty period is generally six months, determined from date of the transfer of risk, unless otherwise expressly agreed in writing. The deadline is a limitation period and also applies to claims for compensation for consequential damages, insofar as no claims are made from an offence; in such cases, the statutory limitation period applies.
§ 10 Total liability
- Any further liability for damages of the kind defined in § 9 shall be excluded – without regard for the legal nature of the asserted claim. This shall apply in particular to claims for damages resulting from positive breach of obligation, from negligence at the time of conclusion of the contract and from tortious liability.
Claims for damages due to impossibility or inability shall remain unaffected.
- The same shall apply, insofar as liability is obligatory under the provisions of the Product Liability Act.
- Should liability for damages be excluded or restricted, this shall also apply to personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 11 Place of jurisdiction – Place of performance – Partial invalidity – Miscellaneous
- Unless otherwise specified in the confirmation of order, or otherwise agreed, our headquarters shall be the place of performance. Exclusive court of jurisdiction is the place of business of the Contractor.
- The law of the Federal Republic of Germany shall apply exclusively to these terms and conditions and all legal relations between the contracting parties.
We are entitled to use our obligations of other reliable companies or persons.
- Should any of the above conditions be invalid, the validity of the remaining provisions shall remain unaffected.
© 2010 – Kliewe GmbH
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