General Terms and Conditions of Sale for KW Maschinen GmbH (GT&C)
1: Scope of application
These terms and conditions of sale shall apply with exclusive effect to companies, legal persons under public law or special funds under public law within the meaning of section 310 (1) BGB (German Civil Code). Customer's terms and conditions which are in conflict with or differ from our terms and conditions of sale shall only be recognised by us if we give express written consent to their applicability.
These terms and conditions of sale shall also apply to all future transactions with the Customer provided that such are legal transactions of a related type.
2: Offer and conclusion of contract
If an order can be deemed an offer under section 145 BGB, we can accept the order within two weeks.
3: Documents supplied to Customer
We reserve proprietary rights and copyrights to all documentary materials supplied to the Customer in connection with the placing of an order, e.g. calculations, drawings etc. These materials must not be made accessible to third parties unless we have given the Customer our express written consent thereto. If we do not accept the Customer's offer within the period stipulated in section 2, the said materials must be returned to us without delay.
4: Prices and payment
Except when agreed in writing to the contrary, our prices shall apply, excluding packaging and plus value added tax at the currently valid level. Packaging costs will be invoiced separately.
Payment of the purchase price must be made exclusively to the account specified overleaf. Deduction of cash discount shall only be possible if specifically agreed in writing.
Except when agreed otherwise, the purchase price must be paid within 7 days after delivery. Interest on default will be charged at 8% p.a. The right is reserved to assert claims for greater loss due to default.
If no agreement has been reached on a fixed price, the right is reserved to make reasonable price adjustments on grounds of changes in wage, material and selling costs for deliveries effected 3 months or more after conclusion of a contract.
5: Right to withhold payment
The Customer shall only be entitled to exercise a right to withhold payment if his counter-claim derives from the same contractual relationship.
6: Delivery time
The commencement of the delivery period stated by us shall be conditional on the timely and correct fulfilment of the Customer's obligations. We reserve the right of defence based on non-performance of contract.
If the Customer defaults on acceptance or is in negligent or wilful breach of other cooperation obligations, we shall be entitled to require compensation for damage or loss thereby incurred by us, including any additional costs. We reserve the right to assert claims of greater extent. In cases where the above conditions are present, the risk of accidental destruction or of accidental deterioration of the object of purchase shall pass to the Customer at the point of time when the latter defaults on acceptance or payment. The same shall apply to delays at the customs for which the Customer is responsible.
In case of delay in delivery caused by us but not through wilful intent or gross negligence, we shall be liable on the basis of a lump-sum compensation for default in the amount of 3% of the shipment value for each completed week of delay, but not more than a maximum of 15% of 15% of the shipment value.
Further statutory claims and rights of the Customer for default on delivery shall remain unaffected.
7: Transfer of risk of shipped goods
If the goods are shipped to the Customer's at the latter's request, the risk of accidental destruction or of accidental deterioration of the object of purchase shall pass to the Customer as of dispatch to the Customer, i.e. not later than the time the goods leave the works/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or which party bears the freight costs.
8: Reservation of title
We reserve title to the goods delivered until such time as payment has been made in full of all claims under the delivery contract. This shall also apply to all future deliveries, even if we do not make express reference thereto in every case. We shall be entitled to reclaim the object of purchase if the Customer is in breach of contract.
The Customer shall be obliged to handle the object of purchase with due care until such time as title has been transferred him. The Customer shall in particular be obliged at his own expense to take out sufficient insurance for the said object, at value as new, against damage or loss due to theft, fire or flooding. If maintenance or inspection work has to be carried out, the Customer must undertake same in good time and at his own expense. As long as title has not yet been transferred, the Customer must inform us in writing, without delay, if the goods delivered have been impounded or otherwise exposed to unwanted acts by third parties. If the third party is unable to compensate us for the judicial and extra-judicial costs of legal action under section 771 ZPO (German Code of Civil Procedure), the Customer shall be liable for the loss thus incurred by us.
9: Warranty, claims for defects and recourse to manufacturer
The Customer's warranty rights shall be conditional on the Customer having correctly fulfilled the inspection and complaint obligations required of him under section 377 HGB (German Commercial Code).
Claims for defects in new products shall become time-barred 12 months after delivery of the shipment has been made by us to our Customer. Warranty is excluded in the case of used machines, commercial vehicles and products of similar nature.
The statutory period of limitation shall apply to claims for damages in case of intent or gross negligence and in case of injury to life, the person or health, the claims resulting from wilful or negligent breach of obligation by the user.
If the Customer finds a defect, he may not modify or work on the object of delivery or hand it over to a third party, but must allow us sufficient opportunity and time to satisfy ourselves of the defect, so as to undertake the necessary supplementary performance, as the case may be; otherwise, all claims on grounds of the detected defect shall lapse. Only in urgent cases of risk to general plant safety, or in order to avert disproportionately serious damage or loss, shall the Customer be entitled to rectify the defect himself or have it rectified by a third party.
This contract and the complete legal relations of the parties shall be governed by the law of the Federal Republic of Germany, to the exclusion of the United Nations CISG Convention.
The place of performance and of the courts with exclusive jurisdiction for all and any disputes arising from this contract shall be our place of business, except where stated otherwise in the order confirmation.
All agreements which are reached between the parties for the execution of this contract have been laid down in this contract.