General Terms and Conditions of Delivery and Service

 

I. General 

1. The following General Terms and Conditions of Delivery and Service shall apply for all present and future quotations (in respect to delivery and service) provided by the Kottmann Technology GmbH, in the following called “Seller” – and any contracts concluded by the seller. 

2. These Terms and Conditions of Delivery and Service shall apply exclusively. They even apply, also to future transactions, if they are not explicitly referred to by the seller, however have been received by the customer in a confirmed order by the seller. If the order is granted deviating from our Terms and Conditions of Delivery and Service, then these still apply even if we do not explicitly object the buyer’s General Terms and Conditions.

3. Differing, conflicting or additional terms and conditions of a buyer (conditions of purchase) only become part of the contract to the extent that the seller accepts their validity in written form. If the seller refers to a letter containing the terms and conditions of a customer or a reference to such, this shall not be seen as a consent with the customer's terms and conditions.

4. Terms and Conditions of Sale and Performance are only valid for use in relation to Businesspersons (§ 14 German Civil Code (BGB)), legal entities under public law and special legal entity under public law or special fund under public law. 

 

II. Quotations, Orders

1. Offers of the Seller are without engagement in terms of price, quantity, delivery period and delivery possibilities.

2. The buyer's orders shall become binding to the Seller upon receipt by the buyer of the seller's written or computer-printed acknowledgement (including invoice or delivery note). 

 

III. Invoicing

1. The seller is entitled to charge the buyer with the prices valid at the time of delivery.

2. Should the seller, in the interval between conclusion of the contract and delivery, effect a general price increase, the buyer shall have the right to withdraw from the contract within two weeks of having been informed thereof, unless the price increase is exclusively due to an increase in freight rates. The right of withdrawal shall not apply to long-term supply contracts (Continuous Obligation Contracts).

3. Where payment is agreed in a currency other than euros (EUR) (foreign currency) the seller reserves the right to reduce or increase his purchase price claim in the foreign currency in the invoice in such a manner that the amount of the invoice corresponds to the Euro equivalent as calculated on the day of conclusion of the contract on the basis of the debt expressed. 

 

IV. Payment

1. Provided that the individual contract or the order confirmation does not state otherwise, the net sales price (without deduction) will be due for payment within 14 days after date of invoice.

2. If the buyer is in default with payment obligations towards the seller then all outstanding claims will be due immediately.

3. Should the seller have reasonable grounds to doubt the buyer’s creditworthiness and should, despite corresponding request, the buyer not be prepared to pay in advance or to provide suitable collateral for the payment, the seller is, provided he did not yet perform delivery, entitled to withdraw from the contract.

4. Payments shall be deemed to have been effected only when the amount is finally available for disposition on an account of the seller.

5. The seller reserves the right to use payments for the settlement of the invoices which have been outstanding longest, plus any interest on arrears and costs accrued thereon, in the following order: costs, interests, principal claim according to § 367 BGB (German Civil Code).

6. Withholding on the part of the purchaser is excluded. The buyer may offset payment only against uncontested or legally established receivables. 

7. The seller is entitled to assign the claims arising from its business relations.

 

V. Delivery

1. The seller always endeavours to deliver as soon as possible. Firm times of delivery are not indicated.

2. Should, notwithstanding the preceding paragraph, a fixed period for delivery have been agreed, and should the seller default with the supply, the buyer shall grant the seller a reasonable respite. 

3. Fulfillment of the contract shall be subject to the reserve of correct and on-time delivery to the seller by his suppliers. 

4. The date of delivery shall be that day on which the product leaves the factory or warehouse; should such day be impossible to determine, that day shall apply on which the product is placed to the buyer’s disposal.

 

VI. Force majeur, contract obstacles

Force majeur of any kind, unforeseeable operating, traffic or shipment disturbances, war, acts of terror, fire damage, floods, unforeseeable lack of staff, energy, raw - and auxiliary material, strikes, lock outs as well as hindrances caused by official authorities, or other impediments, for which the seller is not responsible, that prevent or render production or delivery unreasonable, free the seller from the obligation to deliver for the duration and extent of the disturbance. If, due to the disturbance, the delivery and/or acceptance is exceeded by more than eight weeks, both parties shall be entitled to a rescission. Should the seller's procurement sources be lost in whole or in part, the seller shall not be obliged to cover its requirements from other suppliers. In such an event, the seller shall have the right to distribute the available quantities of goods under consideration of own demands.

 

VII. Shipping

1. The seller reserves the right to choose and modify the route and mode of transport. Additional costs caused by special shipment conditions imposed by the buyer are borne by the buyer. This shall also apply to increases in freight charges that occur after the contract is concluded, any additional costs for re-routing, warehouse charges, etc., unless carriage free of charge is agreed.

2. The risk for destruction, loss or damage of the goods, shall pass onto the buyer at handing over to the carrier, an institution or any other person determined to perform delivery or, in case of pickup by the buyer, once the goods are made available for pickup.

 

VIII. Reservation of Title

1. Title to the goods shall not pass to the buyer until he has fulfilled all liabilities arising from his business connection with the seller, which shall include settling accessory claims and claims for damages and honoring checks and bills. We shall continue to reserve title even if our claims are partly included in outstanding accounts and the balance is struck and accepted unless the balance is cleared.

2. The seller is entitled to demand handover of the conditional commodity by the buyer - without the setting of a period of grace and without withdrawing from the contract - if the buyer is in default on fulfillment of his obligations. The taking back of the conditional commodity shall only constitute withdrawal from the contract if the seller explicitly declares such. If the seller withdraws from the contract, he can demand appropriate remuneration for the period of permitting of use of the goods. 

3. In the event of processing of the conditional commodity, the buyer shall act for the seller without, however, acquiring any entitlements whatsoever against the seller. The seller's title shall thus extend to the products resulting from processing. If goods to which title is retained by the seller are processed together with, mixed with or attached to goods to which title is retained by third parties, the seller shall acquire co-ownership of the resulting products in the ratio of the invoice value of the goods owned by him to the invoice value of the goods owned by those third parties. If the mixing or joining is with a main item of the buyer, the buyer hereby assigns henceforth to the seller his ownership rights to the new item. 

4. The buyer shall be obliged to keep conditional commodities carefully for the seller in safe custody, to maintain and repair it at his own expense as well as to insure the goods against loss and damage at his own expense according to custom and usance. He already now transfers to us his claims resulting from the insurance contracts.

5. As long as the buyer duly fulfills his obligations against the seller, he shall be entitled to dispose of the goods within proper course of business; this shall not apply in the event that between the buyer and his customers an interdiction of assignments concerning the purchase price has been agreed upon. He is not permitted to make other disposals of any kind (in particular, charges and transfers by way of security). When reselling the products, the buyer shall make the passing of the title subject to full payment of the products by his customers.

6. By accepting these conditions, the buyer assigns in advance to the seller any claims which may arise from a resale of the goods to which the seller retains title, together with any incidental rights and security interests including bills of exchange and checks, so as to provide the seller with security for all claims he has on the buyer as a result of his business relationship with the buyer. If any conditional commodities are sold together with any other items at an overall price, the assignment shall be limited to the proportionate amount of our invoice relating to the goods subject to retention of title. If goods are sold, in which seller holds a co-ownership share under item 3, then the assignment shall be limited to that part of the claim, which corresponds to the co-ownership share of seller. If the buyer uses the conditional commodity for the paid improvement of items owned by a third party, he hereby assigns henceforth to the seller his remuneration claim against the third party for the above mentioned security purpose. As long as the buyer duly meets his liabilities to the seller, he may collect claims from a resale or from a quality enhancement. He is not entitled to pledges of any assignments whatsoever. 

7. If the enforcement of claims seems at risk to the seller, the buyer shall on request be obliged to announce the assignment to his customers and to give all necessary information and documentation to the seller.

8. If the value of the seller’s existing security exceeds his entire demands by more than 20%, the seller is obligated in this respect to clear securities chosen by the buyer upon his demand. The selection of securities to be released shall be made by the seller.

 

IX. Compensation

1. Claims of the buyer for damages - including those of extra-contractual nature - against the seller, his employees and other vicarious agents are excluded in cases of slightly negligent violation of obligations by the seller, his employees and other vicarious agents, unless the violation concerns an obligation of fundamental importance for achievement of the purpose of the contract. 

2. The seller shall not be liable for indirect losses and losses that are unpredictable at the time of contract closure only in cases of gross culpability on the part of the seller, his managers or other vicarious agents. 

3. The previous restrictions do not apply to damages relating to injury to life, body or health. However, this shall not affect the applicability of compelling statutory liability regulations such as, for example, liability for the assumption of a guarantee or the Product Liability Law remain unaffected.

 

X. Complaints

1. Complaints are only considered if they are submitted in writing without delay, though in no case more than ten days after receipt of the product together with supporting evidence, samples and packing slips, stating the invoice number and date and the markings of the packaging. 

2. In case of hidden defects the written notice must be made immediately after detecting the defect. The buyer shall carry the burden of proof that a concealed defect exists. 

3. Rejected goods may only be returned with the explicit consent of the seller. 

 

XI. Buyers’ legal rights in case of claims

1. The buyer`s claims are restricted to the right to subsequent fulfillment. In the event of failure of the subsequent fulfilment by the seller, the buyer can withdraw from the contract. Claims for damages according to point IX hereof will remain unaffected. Claims of the buyer based on expenditure necessary for the purpose of the subsequent fulfilment, in particular transport, travelling, labour and material costs, are excluded in so far as the expenditure increases because the item delivered has retrospectively been taken to a location other than the business establishment of the buyer, unless this relocation is in line with the intended use. 

2. In the event of recourse to the guarantee by the buyer following a successful claim against the latter on the basis of the provisions governing the purchase of a consumer good, the claims under a right of recourse in accordance with the regulations on the purchase of consumer shall remain unaffected. With reference to compensation claims point IX applies. 

3. The buyer is obliged to notify the seller of all cases of recourse occurring in the supply chain immediately he becomes aware of such. Statutory claims under a right of recourse by the buyer against the seller shall not apply with respect to arrangements entered into by the buyer with his customer over and above statutory warranty claims. 

4. Any warranty must be made in writing. A declaration of warranty is effective only if it details with sufficient precision the nature and duration of the warranty and the territory in which protection is granted.

 

XII. Limitation

Warranty claims become time-barred within one year of delivery of the goods unless otherwise mandatorily prescribed by statute, in particular for goods that were used in accordance with their normal purpose for a building structure and which are responsible for its defect. In this case the buyer’s claims for compensation of expenditure towards the supplier have a limitation period of 2 years from the commencement of the statutory period of limitation. Imperative legal provisions regarding limitation periods and liability, such as liability when offering a warranty, liability for deliberate or grossly negligent actions, for injury to life and limb or to health, liability under the Product Liability Act and the provisions of the Consumer Goods Purchase Act are not affected thereby. 

 

XIII. Properties of the goods, technical advice, use and processing

1. As a fundamental rule, exclusively the quality stated in the seller's product descriptions, specifications and identifications shall apply as the quality of the goods. Any public statements, promotion or advertising do not constitute any statement as to the condition/quality of the goods. 

2. Advice on technical applications by the seller verbally, in writing or by means of tests, are only then deemed as an advice without obligation, conducted to best knowledge, also in respect of the protected rights of third parties and do not release the buyer from his own obligation to examine the products for their suitability for the intended procedure and purpose. Application, use and processing of the products take place outside the seller’s liability to supervise and are therefore exclusively the buyer’s own responsibility.

 

XIV. Applicable law, interpretation of clauses, etc.

1. The contractual relationship is exclusively subject to German Law.

2. Customary trade terms are to be interpreted according to the respective applicable Incoterms. 

3. If it has been agreed that the seller bears customs and import taxes of the destination country, increases of such taxes becoming effective between submission of the confirmation of order and delivery of the merchandise shall be borne by the buyer. All other charges, taxes and costs connected with the purchase contract shall also be borne by the buyer. 

 

XV. Place of performance, place of jurisdication, effectiveness clause

1. Place of performance with regard to the supply is Iserlohn. 

2. Jurisdiction is the seller's place of business. The seller is however also entitled to exercise his rights at the buyer's general place of jurisdiction.

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