General Terms and Conditions
§ 1 General Information – Applicability
1.1. All deliveries, services and offers of Alois Kühbeck GmbH (supplier) are exclusively subject to these terms of sale; any conflicting terms of sale or any terms and conditions of the customer that deviate from our terms of sale will not be accepted unless we have expressly agreed to their validity in writing.
Our terms of sale also apply if we carry out the delivery or the service to the customer unreservedly and with knowledge of any conflicting terms of sale or any terms and conditions of the customer that deviate from our terms of sale.
1.2. All agreements made between us and the customer for the purpose of the execution of this contract are set forth in writing in this contract.
1.3. Our terms of sale only apply with respect to companies as defined by § 310 Sect. 1 BGB.
1.4. Our terms of sale also apply for all future business dealings with the customer.
§ 2 Quotation – Quotation documents
2.1. Our quotations are non-binding unless the order confirmation contains provisions to the contrary.
2.2. We reserve the proprietorship and copyright on all samples, quotes, images, drawings and other documents – also in the form of electronic data. This applies also to documents that are marked “confidential”. The customer needs our explicit agreement in writing before passing on any of the above to a third party.
2.3. If, on instructions from the customer, we use his samples, drawings or other information in the manufacturing process, the customer is solely responsible towards third parties for the safeguard of any rights of these third parties. He is also responsible for the correctness of the information.
§ 3 Prices and Payment Terms
3.1. Unless otherwise specified in the order confirmation, our prices are “ex works”, excluding any packaging. The latter will be invoiced separately. VAT at the relevant legal rate will be added to the prices.
3.2. In the event that services are performed on the basis of a written quote, the prices quoted are binding. The supplier is bound by such a quote if the order is placed within two weeks of reception of the quote by the customer. 3.3. Unless otherwise stated in the order confirmation, our invoices are payable within 4 weeks of the date of issue with no deductions. The deduction of any discount requires a separate agreement in writing. 3.4. Payments by cheque, banker’s draft or acceptance require prior agreement in writing. These will only be accepted on account of performance and not in lieu of fulfilment. The payment will only be considered to have been made when the amount has been credited to our bank account withno reservations. Any charges, processing fees or other expenses shall be borne by the customer.
3.5. Furthermore, we reserve the right to make a reasonable adjustment to our prices if, after conclusion of the contract, a reduction or increase in cost takes place, particularly as a result of wage agreements or changes in the price of materials. Upon request, we shall produce evidence of these to the customer.
3.6. In case of a default of payment for which the customer is responsible or a considerable deterioration in assets (e.g. an application for an out-of-court settlement, failed measures of compulsory debt enforcement, drafts or cheques having been protested, etc.), we reserve the right to request advance payment or cash payment as and when deliveries of goods are made, in discontinuance of the term of credit previously granted, or to withdraw from the contract. Furthermore, the immediate payment for already delivered goods and services can be demanded without the need for a separate reminder.
3.7. The customer is only entitled to offset amounts of payment if his counterclaim has been established as legally effective, is undisputed or has been acknowledged by us. The customer is only allowed to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Delivery Time, Delay in Delivery
4.1. The delivery time is established in the agreements between the contracting parties.
4.2. Compliance on the part of the supplier is under the condition that all business and technical questions between the contracting parties are clarified, and that the customer has – as far as necessary – fulfilled all his obligations, such as the provision of materials, the production of the necessary official approvals or certificates or making a down payment. If this is not the case, the delivery time will be extended accordingly. This does not apply if the supplier is responsible for the delay. The right to object to the unfulfilled contract is reserved.
4.3. The delivery time has been complied with if the delivery item has left the factory or has been declared ready for dispatch before the end of the delivery time. If an acceptance must take place, the date of acceptance is relevant, or alternatively the notification of the availability of the item, unless an acceptance rejection is justified.
4.4. If the non-compliance with the delivery time is due to force majeure, industrial action or other events which lie outside our area of responsibility, the delivery time will be extended accordingly by the duration of the delay or interruption caused by the event. We will communicate the beginning and the end of such circumstances as soon as possible. In this case, we have the right, with regards to the not yet fulfilled part of the contract, to withdraw completely or partly from the contract if the maintenance of the contract presents an unreasonable hardship for us. Such a withdrawal releases us from all liability for damages for delay or non-performance of services. Should the prevention last longer than three months, the customer also has the right, after a reasonable extension of the delivery time, to withdraw from the contract regarding the part of it that has not yet been fulfilled.
4.5. Should the customer fail to accept the goods or services or be found guilty of violating other duties of cooperation, we reserve the right to demand compensation for any damage caused to us, including any additional costs. Additional claims remain reserved. In this case, the risk of accidental loss or deterioration of the delivery items shall pass to the customer at the point in time at which the customer defaults on acceptance or payment.
4.6. The customer can withdraw from the contract without fixing a time limit if the entire service becomes definitely impossible before transfer of risk. Furthermore, the customer can withdraw from the contract if the completion of part of the delivery becomes impossible for an order and if he has a justified interest in refusing the part delivery. If this is not the case, the customer has to pay the contract price due for the partial delivery. This applies also to incapacity to perform on the part of the supplier. If the impossibility or incapacity occurs during the acceptance delay or if the customer is solely or mainly responsible for these circumstances, he remains liable for consideration.
4.7. Furthermore, we are liable within the legal provisions if the delivery delay is caused by an intentional or negligent breach of duty for which we are responsible; we are also answerable for the faults of our representatives or subcontractors. In case of a mere grossly negligent breach of duty, our liability is limited to the predictable, typically occurring damage.
4.8. We are also liable within the legal provisions if the delivery delay for which we are responsible is caused by a culpable violation of an essential contractual obligation; in this case, the liability is limited to the predictable, typically occurring damage.
4.9. In addition, in case of a delivery delay, we are liable for every complete week of the delay within the framework of a flat-rate default compensation of 0.5 %, in total however no more than 5 % of the value of the part of the delivery which could not be used in time or according to contract because of the delay.
4.10. Further legal claims and rights of the customer remain reserved.
§ 5 Transfer of Risk, Acceptance
5.1. The risk is transferred to the customer when the delivery item leaves the factory, even if partial deliveries are made or the supplier has taken on other services, such as the shipping costs or delivery and installation. Insofar as acceptance must take place, it is decisive for the transfer of risk. It has to take place without delay on the date of acceptance, alternatively after notification by the supplier of the readiness for acceptance. The customer may not refuse acceptance in the case of a non-serious fault.
5.2. If the shipping or the acceptance is delayed or does not take place through causes for which we cannot be held responsible, the risk is transferred to the customer on the day of the notification of the readiness for despatch or acceptance. We commit to taking out any insurance which the customer requests at the customer’s charge.
5.3. Partial deliveries are permissible as long as they are deemed to be acceptable for the customer.
§ 6 Liability for Defects
6.1. Claims for defects by the customer require him to have correctly performed his statutory inspection and complaint obligations in accordance with § 377 HGB.
6.2. Our liability for defects does not apply to parts or products made available by the customer. We do not accept any liability for used parts or products.
6.3. If a defect exists at the time of the transfer of risk, we have the right to choose to repair the defect or deliver a replacement. If the repair fails, the customer can choose to withdraw from the contract or demand a reduction of the payment. This also applies if we refuse the repair seriously and definitely. If only a non-serious fault exists, the customer has only the right to a reduction of the payment.
6.4. The customer must give us the necessary time and opportunity for carrying out repairs that the supplier deems necessary or for replacement deliveries; otherwise we are released from the liability for the resulting consequences.
6.5. Of the costs arising directly from the repair or replacement delivery, the supplier pays the cost of the replacement item including shipment – insofar as the complaint is justified. The parts that have been replaced become our property.
6.6. No guarantee is given for the following cases in particular: unsuitable or improper use, incorrect assembly or operation by the client or third parties, normal wear and tear, incorrect or negligent handling, improper maintenance, unsuitable supplies, defective construction work, unsuitable foundations, chemical, electrochemical or electrical influences, unless they are the responsibility of the supplier.
6.7. We are liable within the legal provisions if the customer asserts a claim on compensation which is based on intention or gross negligence, including intention or gross negligence on the part of our representatives or subcontractors. In case of gross negligence, our liability is limited to the predictable, typically occurring damage.
6.8. We are liable within the legal provisions if we violate an essential contractual obligation: in this case, however, our liability is limited to the predictable, typically occurring damage.
6.9. The liability for culpable injury of life, body and health remains unaffected; this shall also apply to the mandatory liability as provided for in the product liability law. 6.10. Unless otherwise specified in the paragraphs above, any liability is excluded.
6.11. The period of limitation for claims for defects is 12 months, beginning with the transfer of risk.
6.12. The customer does not receive any warranties from us within the terms of the law.
§ 7 General Liability
7.1. Further liability for damages other than those mentioned in § 6 – irrespective of the legal nature of the claim – is excluded. This applies in particular for claims for damages which arise from negligence in contracting, other breach of duty or tort claims to compensation for property damage in accordance with § 823 BGB.
7.2. The limitation in accordance with Sect. 1 also applies if the customer claims compensation of useless expenses instead of a compensation for damage.
7.3. Insofar as the liability for damages towards us is excluded or limited, this applies also with regards to personal liability for damages on the part of our workers, employees, members of staff, representatives and subcontractors.
7.4. Insofar as a liability for damages which is not based on injury to life, body or health is not excluded for minor negligence, these claims lapse after a year from the origination of the claim.
§ 8 Reservation of Property Rights
8.1. We reserve the property of the contractual item until receipt of all payments arising from the contract. In case of behaviour contrary to contract on the part of the purchaser, in particular default of payment, the supplier is entitled to take back the contractual item following a reminder. Taking back the item implies our withdrawal from the contract. After taking it back, we are entitled to the utilisation of the contractual item; the proceeds from the utilisation are to be credited against the purchaser’s accounts payable – minus reasonable utilisation costs.
8.2. The customer has the obligation to treat the contractual item with care; he has the obligation, in particular, to ensure that the item is sufficiently insured at his own expense against fire, water and theft to the replacement value.
8.3. The customer is not allowed to sell or pawn the contractual item or to transfer it as a security. In case of distraint or confiscation or other interference of third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 ZPO. If the third party is not able to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO, the customer is liable for the incurred loss.
8.4. If an application is made for insolvency proceedings to be opened, the supplier is entitled to withdraw from the contract and demand the immediate restitution of the item delivered.
§ 9 Miscellaneous
9.1. If the purchaser is a merchant, our registered office is the place of jurisdiction. We are, however, also allowed to take legal action against the purchaser at the court at his place of residence.
9.2. All legal relations between the purchaser and us shall be exclusively governed by the laws of the Federal Republic of Germany. This applies to the conclusion as well as to the execution of the contract. The UN international trade law shall be excluded.
9.3. Provided that nothing else is stated in the order confirmation, our registered office is the place of fulfilment.
As of: August 2006