Terms and Conditions of Kuntze Instruments GmbH
§1 General – Scope
(1) Our General Terms and Conditions apply exclusively. They are valid for all contractual relations and pre-contractual negotiations with the customer within the scope of all current and future business relations. Deviating terms and conditions of the customer are not obligatory for us, unless we have acknowledged their validity in written form. Our Terms and Conditions of Business also apply if we execute the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Business.
(2) All agreements made between us and the customer for the execution of the contract concluded by our order confirmation or in any other way are written down in these terms and conditions and in the order confirmation.
(3) Our Terms and Conditions only apply to entrepreneurs, legal entities under public law and/or a special fund under public law within the meaning of § 310 (1) of the German Civil Code (BGB).
(4) Additional terms and conditions apply to assembly, commissioning, maintenance and other customer services.
§2 Offer – offer documents
(1) Our offers are always subject to change; this also applies to the prices, technical data, drawings, illustrations, delivery time information, etc. stated in our documents.
(2) If the order of the customer is to be qualified as an offer according to § 145 BGB, the customer is bound to it for 14 days.
(3) Our type designations must be stated in orders. We are not liable for incorrect deliveries resulting from omission of this information. If the customer wishes to deviate from our listed design, he must provide exact written details.
(4) The written form requirement applies. Verbal agreements are not valid if they are not confirmed by us in writing. An order placed by the customer is only binding for us upon our written confirmation. For our delivery obligations, only the information in our written order confirmation is authoritative. This also applies in particular in the event of any deviations from the listed design requested by the customer. Subsequent change requests of the customer with regard to technical designs only become binding for us with our written confirmation.
(5) We reserve the property rights and copyrights to all documents provided by us. This also applies to such written documents which are designated as “confidential”. The customer must obtain our explicit written consent before passing them on to third parties.
§3 Deliveries – Delivery time
(1) We do not assume any procurement risk or any kind of guarantee, unless an explicit written agreement has been made with the customer.
(2) We are entitled to make partial deliveries and to invoice them separately.
(3) The start of the delivery period stated by us is subject to the clarification of all technical questions. A further requirement for compliance with the delivery period is the timely and proper fulfillment of the contractual obligations assumed by the customer, in particular the payment of the agreed amount. We reserve the right to plead legal objection to non-fulfillment of the contract.
(4) If the customer is in delay of acceptance or culpably violates other obligations to cooperate, in particular by not providing necessary technical documents and data in time, we are entitled to demand compensation for the damage caused to us, including any additional expenses. We reserve the right to assert further claims.
(5) If the conditions of section (4) are met, the risk of accidental loss or accidental deterioration of the goods is transferred to the customer at the time when the customer is in delay of acceptance or debtor’s delay.
(6) We are liable in accordance with the statutory provisions if the underlying contract is a transaction for delivery by a fixed date within the meaning of § 286 Section 2 No. 4 of the German Civil Code (BGB) or § 376 of the German Commercial Code (HGB). We are also liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in the further contractual fulfillment has ceased to exist. If there is no transaction for delivery by a fixed date and if the customer is also not entitled to assert a discontinuation of interest, the customer is, in the event of a delay for which we are responsible, only entitled to assert further rights if a reasonable period of extension granted by him after the occurrence of the delay has elapsed without result.
(7) We are also liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or assistants is to be attributed to us; if the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damage.
(8) We are also liable in accordance with the statutory provisions if the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
(9) Otherwise, in the event of a delay in delivery, our liability is always limited to the foreseeable, typically occurring damage, but not more than 5% of the value of the undelivered goods.
(10) Further statutory claims and rights of the customer remain reserved.
§4 Prices – Terms of payment
(1) Unless otherwise stated in the order confirmation, our prices apply ex works, excluding packaging, freight, customs duty, insurance and assembly on site, other additional services and excluding the statutory value added VAT applicable at the time. Our prices are stated in EURO.
(2) Unless otherwise stated in the order confirmation, our claims are due immediately upon invoicing. This applies regardless of whether the goods have already been received by the customer. We are entitled to demand advance payment. All our invoices are to be paid net cash. Payments shall be made in EURO free of charges and expenses via the banking institution designated by us. For the punctuality of the payment, the unconditional credit entry on the bank account is decisive.
(3) A cash discount deduction requires prior written agreement.
(4) Default in payment occurs after a reminder has been issued, but no later than 30 days after invoicing. The statutory rules concerning the consequences of default in payment apply.
(5) The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. Furthermore, he is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§5 Transfer of risk – packaging costs
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
(2) The return of the packaging requires a special agreement.
(3) If shipment of the ordered goods has been agreed, this shall take place from our place of business at the expense and risk of the customer. Unless otherwise stated in the order confirmation, we are free to choose the transport company and the means of transport. The risk passes to the customer upon delivery of the goods to the carrier. This is also the case if carriage paid delivery has been agreed.
(4) We are not obliged to insure the goods against transport damage or to have them insured, unless we have assumed a corresponding obligation in writing; any costs incurred in this respect will be paid by the customer.
§6 Liability for defects – withdrawal
(1) The customer is obliged to inspect the goods immediately after delivery and to notify us in writing without delay (within 8 days after delivery at the latest) of any defects that become apparent. Defects which are notified late contrary to the above obligation are excluded from the warranty. Notices of defects will only be accepted by us if they are made in writing. Our sales representatives as well as transporters and other third parties are not entitled to accept notices of defects in our name or to make statements regarding the warranty. Goods may only be returned to us with our prior written consent. Returns made without our prior written consent need not be accepted by us. In this case, the customer bears the costs of shipment. In the event that a rectification or replacement delivery is made on the basis of an existing notice of defect, the provisions regarding the delivery time apply accordingly.
(2) The existence of such a defect detected and notified by an effective notice of defect gives reason for the following rights of the customer:
In the event of a defect, the customer first has the right to demand subsequent fulfillment from us. The customer has to grant us a reasonable period of time for subsequent fulfillment. This period may not be less than 3 weeks. The right to choose whether a subsequent delivery of the item or a remedy of the defect is our choice. If the supplementary fulfillment has failed, the customer has the right to withdraw from the contract or to reduce the price. However, in the event of a minor breach of contract, in particular in the event of minor defects, the customer is not entitled to rescind the contract. If the customer chooses to withdraw from the contract due to a defect of title or material defect after subsequent fulfillment has failed, he is not entitled to any additional claim for damages due to the defect. If the customer chooses compensation for damages after failed subsequent fulfillment, the goods remain with the customer if this is reasonable for him. The compensation for damages due to the defect is limited to the difference between the price and the value of the defective item. This does not apply if we have fraudulently caused the breach of contract. If the customer is solely or predominantly responsible for circumstances that would entitle him to withdraw from the contract, or if the circumstance entitling him to withdraw from the contract occurred during the customer’s default in acceptance, withdrawal from the contract is excluded. Further obligations of us to pay damages according to sections (4) to (6) shall remain unaffected.
(3) Withdrawal is excluded except in the cases provided for by law. If the customer wishes to cancel the contract before it has been fully processed, without there being a reason for withdrawal, we reserve the right to make approval dependent on the payment of a handling fee of at least 20% of the list price.
(4) We are liable in accordance with the statutory provisions to the extent that the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or assistants. Unless we are accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
(5) We are liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
(6) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(7) Our liability for property damage is always limited to a maximum amount of 1 million EURO.
(8) Unless otherwise agreed above, liability is excluded.
(9) The limitation period for claims for defects is 2 years for new items and 1 year for used items from the date of delivery. We would like to point out that wear and tear due to use does not entitle the customer to assert warranty claims.
§7 General liability
(1) Any further liability for damages than provided for in § 6 is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from fault upon conclusion of the contract, due to other breaches of duty or due to tortious claims for compensation for property damage in accordance with § 823 BGB.
(2) As far as our liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of our employees, representatives and assistants.
§8 Retention of title
(1) Any goods delivered by us remain our property until the price has been paid in full and until all claims resulting from the business relationship have been settled in full (extended retention of title).
(2) The customer may only dispose of the goods subject to retention of title in any manner whatsoever within the scope of its regular business transactions. Under no circumstances may the goods be transferred to third parties as security. In the event of sale of the goods subject to retention of title in the course of regular business transactions, the purchase price paid takes the place of the goods. The customer hereby assigns to us all claims arising from a possible sale in the amount of the final invoice amount (including VAT) of our claim, which arise from the resale against his customers or third parties, irrespective of whether the goods subject to retention of title have been resold without or after processing. The claim assigned to us in advance by the customer also relates, if a current account relationship exists between the customer and his customer, to the acknowledged balance and, in the event of insolvency of the customer, to the then existing “causal” balance. The customer is authorized to collect these claims even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we commit ourselves not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, we may demand that the customer informs us of the assigned claims and their debitors. all information necessary for collection, to hand over the relevant documents and to inform the debitors (third parties) of the assignment. With regard to the extended reservation of title (advance assignment of the respective purchase price claim), an assignment to third parties, in particular to credit institutions, is contrary to the contract and therefore not permitted.
(3) In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing, sending an affidavit, that the seized goods are the goods subject to retention of title delivered by us, so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). The customer must provide us with a copy of the execution record. Likewise, the customer must notify the third party of our reserved ownership. If the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (Code of Civil Procedure), the customer is liable for the loss incurred by us.
(4) In the event of any breach of contract by the customer, in particular in the event of default in payment, we are entitled to take back the goods subject to retention of title. The taking back of the reserved goods by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the reserved goods by us always constitutes a withdrawal from the contract. After taking back the goods subject to retention of title, we are entitled to realize them; the realization proceeds – less reasonable realization costs – are to be credited against the claim existing in our favor.
(5) The customer is obligated to handle the reserved goods with care; in particular, he is obligated to insure them at his own expense against the risk of fire, water and theft and to provide us with evidence of the conclusion of a corresponding insurance policy upon request.
In all other respects, the customer bears the obligations, risks, liabilities, taxes, duties and other burdens associated with the ownership, possession, acquisition and operation of the reserved goods. He is also liable for the accidental loss of or damage to the reserved goods and must report such incidents in writing without delay.
(6) If the realizable value of the securities pursuant to the preceding sections of this paragraph exceeds the amount of the claims secured thereby by more than 10% for the foreseeable future, the customer is entitled to demand that we release securities to this extent; the selection of the securities to be released is our responsibility.
§9 Place of Jurisdiction – Place of fulfillment
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, our place of business is the place of jurisdiction; however, we are also entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany applies; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Unless otherwise stated in the order confirmation, our place of business is the place of fulfillment.
Kuntze Instruments GmbH, Robert-Bosch-Str. 7a, 40668 Meerbusch, Germany
As of: February 2016