General terms and conditions of KMU LOFT Cleanwater GmbH
(1) These general terms and conditions (hereinafter "GTC") of KMU Loft Cleanwater GmbH (hereinafter "KLC") apply to all business regarding the delivery and the provision of services associated with the delivery to the customer by KLC, provided that the customer is not located in Germany.
(2) The scope of these GTC is limited to contracts with contractors.
(3) These GTC apply exclusively. The inclusion of conditions of the customer contrary to, supplemental to or deviating from our GTC is hereby rejected. These also do not apply, if we perform delivery to the customers with knowledge of or without explicit rejection of GTC of the customer.
(4) These GTC also apply to future business between KLC and the customer.
§2 RIGHTS TO DOCUMENTS
(1) Offers, cost estimates and other documents shall remain our property and may only be made available to third parties with our prior written consent.
(2) We are exclusively entitled to all (copy)rights on samples, devices, tools, designs, cost estimates, drafts and plans produced by us, especially patent rights, copyrights and originator rights. These documents and rights may only be made accessible to third parties, insofar as we have expressly given our written consent for this, whereby in this case only the written form in accordance with § 126 BGB is sufficient.
(3) The exchange of the aforementioned objects and documents does not constitute a transfer or granting of rights (licence for use).
§3 ANCILLARY OBLIGATIONS OF THE CUSTOMER
(1) The customer is obligated immediately to inform us of all binding statutory regulations that apply at their registered office or the place of destination of the goods of which they are aware, if these binding legal regulations are in contradiction to this contract or affect the implementation of this agreement.
(2) The customer undertakes to support us, insofar as we have to take measures in the context of the performance of this contract in the country in which the customer has their registered office or in which the place of destination of the goods is, of which the customer is aware.
§4 CONTRACT CONCLUSION
(1) Our offers are in principle non-binding. The same applies if we deliver a preliminary invoice (pro-forma invoice) or comparable declarations at the customer's request, in particular for the purpose of fulfilling governmental requirements.
(2) The contract is concluded only by our written order confirmation.
(3) An offer submitted by the customer is irrevocable for a period of two weeks after receipt by KLC. This does not apply if the customer has expressly reserved in writing the free ability to revoke.
§5 CONTRACTUAL CONTENT
(1) The contractually owed performance shall be determined according to the agreement in accordance with the order confirmation, alternatively according to the ordinary purpose of goods of the same type. A special use intended by the customer is only relevant if we were notified expressly and in writing of this purpose prior to conclusion of the contract, whereby the written form of § 126 BGB is required here.
(2) The subject of the contract is contractually compliant if it meets the legal requirements, in particular the state, public or governmental requirements at our headquarters. We are only responsible for compliance with the requirements at the customer's headquarters, in the country of the place of destination of the goods of which the customer is aware or in another third country, if we have given an explicit written commitment in the form provided for in § 126 BGB and the customer complies with their co-operation obligations with respect to existing requirements, in particular in accordance with § 3. In principle, it is incumbent on the customer to obtain any required permits.
(3) Technical specifications of our products such as weight and dimension data, performance and characteristic descriptions as well as illustrations, designs and other documents do not represent quality guarantees. Specific characteristics are only deemed to be guaranteed if a separate written agreement (quality guarantee) was made. For the written form of the warranty statement, § 126 BGB is decisive.
(4) Any documentation is due in German language. The agreement of an obligation of KLC to provide any documentation in another language requires the written form in the context of § 126 BGB.
(5) Subsequent changes or adjustments to the performance due from KLC are allowed if they are customary or technically necessary and do not unreasonably burden the customer.
§6 DELIVERY PERIOD; FORCE MAJEURE; PARTIAL DELIVERY; NON-ADHERENCE TO THE DELIVERY PERIOD
(1) Subject to different regulation in individual cases, delivery times are approximate. KLC announces the actual time of delivery with adequate lead time, usually two weeks, in writing. The actual time of delivery to be announced may not be more than two weeks after the previously announced approximate delivery time, subject to the following points 2, 3, 5 and 6.
(2) The start of a delivery period assumes the clarification of all technical questions. The delivery period does not begin before the customer has complied with their duty of cooperation in this respect.
(3) In the case of an agreement by the customer to an obligation to render performance in advance such as making a down payment or the proof of a financing commitment, an agreed delivery period does not begin before the customer has fulfilled their obligations to render performance in advance.
(4) KLC is entitled to object to the non-fulfilment of the contract.
(5) An agreed delivery period is subject to the complete and timely delivery by our contractual partner (reservation of self supply).
(6) The delivery period shall be extended appropriately in the event of force majeure, in particular, but not exclusively because of floods, natural disasters, shortages of raw materials, terrorism, strikes. KLC will inform the customer immediately about the existence of force majeure and the expected end of this circumstance. If the state of force majeure persists continuously for more than six weeks or the delivery deadline is delayed by more than eight weeks due to force majeure, the customer is entitled to annul the contract. In the case of force majeure, the assertion of further claims is excluded.
(7) We are prepared to make partial deliveries, unless this is unreasonable for the customer.
(8) Claims for damages due to non-compliance with the delivery period shall be exercised in accordance with § 12.
§7 TRANSFER OF RISK
(1) The risk of accidental loss shall be transferred to the customer upon delivery to the carrier (FCA Kirchentellinsfurt or Hausen, Germany - Incoterms 2010).
(2) If the customer does not accept the goods declared ready for delivery at the time of delivery (§ 6 point 1 sentence 2), the risk of accidental loss passes at the time of delivery to the customer.
§8 DEFAULT OF ACCEPTANCE; DELAY DAMAGE
(1) If the customer does not accept the goods in good time (§ 7) or otherwise is in default of acceptance, they owe as damages to KLC an amount per week started of 0.5% of the value of the order or of the value of the partial delivery, in total however not more than 5% of the value of the order or of the value of the partial delivery.
(2) The customer is entitled to prove lower damages, KLC is entitled to prove higher damages.
§9 PRICES; PAYMENT TERMS
(1) All prices are net prices and are plus the respective VAT applicable at the time of delivery.
(2) Payments are due in EUR unless agreed otherwise. If the agreement of payment in EUR is inadmissible, payment is due in the currency applicable at the customer's headquarters. In this case payment must be made in the amount which corresponds to the invoice value in EUR at the time the (partial) payment is due. If payment in both of the aforementioned currencies is not possible, payment shall be made in a third currency. Sentence 3 and point 6, sentence 2 shall apply accordingly.
(3) The customer shall bear all other such costs, in particular for the handling of payment, transport, import and export duties, fees, etc..
(4) All prices are free carrier (FCA Incoterms 2010), Kirchentellinsfurt, or Hausen, Germany, subject to a deviating agreement in individual cases.
(5) The deduction of cash discount requires special agreement in individual cases.
(6) Payments are to be made at the headquarters of KLC in Kirchentellinsfurt, Germany. Costs and risk of payment shall be borne by the buyer.
(7) Payments shall become due within ten (10) days of the transfer of risk subject to a deviating written (article 13 CISG) agreement.
(8) If there are more than fourteen weeks between conclusion of the contract and transfer of risk and we are not responsible for exceeding this period, we are entitled to increase the price according to the additional production costs incurred by us, particularly as a result of higher raw material prices.
§10 NOTICE OF DEFECTS - EXCLUSION OF WARRANTY RIGHTS
(1) The customer is obligated to inspect the delivered goods without delay for freedom from defects, at the latest however within ten (10) working days of the transfer of risk and immediately to report discovered defects, within no more than three (3) working days. This does not apply, insofar as the actual transfer of risk took place before the agreed date of delivery (delivery time according to §6 point 1 sentence 2). In this case, the inspection period begins with the agreed delivery date (time of delivery in accordance with § 6 point 1 sentence 2).
(2) Furthermore, the customer is obligated to notify us of defects, which within the context of the inspection (point 1 sentence 1) were not detected, within three (3) working days of their actual discovery.
(3) The notification is to be made in writing. The notification must include a detailed description on the basis of which the suspected causes and their effects are evident. Upon request, appropriate documentation material, especially photographs, are to be provided to us.
(4)If the customer does not meet their aforementioned specific inspection and notification obligation, the performance is deemed accepted and they are not entitled to warranty claims and claims for damages. This does not apply if we have fraudulently concealed the defect or the exclusion would be contradictory with the provisions of a guarantee (§ 5 point 3).
(5) The customer is obligated to bear the costs incurred by KLC as a result of an unjustified notification of defects.
(6) The periods for points 1 and 2, if documentation is due from KLC, only start when the customer has received the documentation.
(7) If a period of two years has elapsed between the actual handover and the notification of a defect, the customer can no longer claim warranty rights.
§11 RIGHTS OF THE BUYER IN CASES OF BREACH OF DUTY BY THE SELLER (= WARRANTY CLAIMS); LIMITATION OF CLAIMS; PROPORTION OF COMPENSATION
(1) In the case of inadequate performance by KLC, i.e. the actual performance falling short of the contractually due performance (insufficiency), the claims of the customer are based on the following provisions.
(2) First, the customer is only entitled to require KLC to rectify the inadequate performance (remedy) within a reasonable period of time. Selecting the type of remedy, essentially repair or replacement, by which KLC will rectify the inadequate performance, is incumbent on KLC. For the purpose of the remedy, the customer shall grant KLC or third parties commissioned by KLC access to the goods, and shall support proposed measures which become necessary. KLC shall assume the costs of the remedy with the exception of those additional costs, which are connected with the shipment of the goods to a destination other than the original destination.
(3) If KLC fails to provide the remedy within the reasonable period of time or the method of remedy chosen by KLC does not lead to freedom from defects, the customer is entitled to reduce the purchase price.
(4) The customer is only entitled to cancel the contract if
a) the defect represents a material breach of the contract, and
b) the rectification of this defect was not performed within the appropriate period or did not lead to freedom from defects. Letter b does not apply if the defect represents a material breach of the contract and the rectification of the defect is unreasonable for the customer due to the circumstances of the individual case or will obviously fail.
(5)The customer is also entitled to cancel the contract if KLC in the event of non-compliance with the delivery time in spite of setting a further reasonable period of time, that normally may not be less than two (2) weeks, does not render the performance. § 6 point 6 sentence 1 shall apply correspondingly with respect to this additional period.
(6) The customer is obligated to assert the claims in accordance with points 2 - 5 within a reasonable period of time. They shall urge KLC in writing to perform its duties.
(7) If the non-performance or inadequate performance only concerns a part of the delivery, the claims in accordance with points 2 and 3 are only valid in regard to that part which is affected by the non-performance or inadequate performance. The rescission of the entire contract (points 4 and 5) may only be declared in such a case where the incompleteness of the delivery or only partial contractual delivery represents a material breach of the contract.
(8) Warranty claims - with the exception of damage compensation claims - become time-barred within 12 months of transfer of risk. This does not apply for fraudulently concealed defects or unrecognisable defects (§ 10 point 3).
(9) The customer may extend the cancellation of the contract or replacement delivery only insofar as they can return the previously received performance essentially in the state in which they received it.
(10) The aforementioned claims due to inadequate performance, which are due to improper handling by the customers or the disregard of the instructions for use, are excluded.
(11) For the assertion of claims for damages due to defectiveness, point 4.b. and point 4 sentence 2 apply correspondingly in accordance with § 12.
§ 12 LIABILITY
(1) KLC is liable according to the statutory provisions in the event of culpable breach of duty for all damages resulting from the injury of life, body or health.
(2) KLC is liable in accordance with the provisions of the applicable product liability law.
(3) In the case of a contractual guarantee agreement (§ 5 point 3), KLC is liable according to the guarantee statement.
(4) KLC is liable for intentional and grossly negligent breach of duty.
(5) The liability in accordance with point 4, in the case of grossly negligent breach of duty, is limited to three times the concerned order value. If three times of the concerned order value is less than the amount of 25,000.-- EUR, KLC is liable for the occurrence of actual damage in the corresponding amount up to an amount of 25,000.-- EUR.
(6) The liability for any other negligent breach of duty or non-culpable damage is excluded.
§13 SET-OFF, RIGHT OF RETENTION
(1) The customer is allowed to set-off only with undisputed or legally established claims.
(2) Point 1 applies correspondingly to the exercise of a right of retention.
§14 RETENTION OF TITLE
(1) The goods delivered by us remain our property (reserved goods) until the full payment of the respective delivery invoice.
(2) The customer is obligated to insure the goods adequately at their own expense against fire, water and theft.
§15 APPLICABLE LAW
(1) This contract and its conclusion are subject to the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). The law of the Federal Republic of Germany applies additionally.
(2) Point 1 sentence 2 shall apply accordingly for non-contractual claims.
§16 ARBITRATION CLAUSE; UNENFORCEABILITY OF THE ARBITRATION
(1) All disputes arising in connection with this contract or regarding its validity, will be finally settled according to the rules of arbitration of the German Institution for Arbitration e.V. (DIS) to the exclusion of the ordinary legal process.
(2) The place of the arbitration is Stuttgart, Germany. The number of arbitrators is three. German is the language of the arbitration proceedings. The applicable substantive law arises from § 15.
(3) If the arbitration should be unenforceable, the parties agree the competent Court for the KLC headquarters arising from the order confirmation as exclusive Court of jurisdiction. KLC is entitled to sue the customer at their general Court of jurisdiction in this case.
§17 OTHER; WRITTEN FORM
(1) All declarations must be made in the language of the contract, in order to be effective.
(2) The customer may transfer rights and obligations under this agreement wholly or partially to a third party only with our prior written consent.
(3) Unless expressly specified otherwise in these GTC, the written form requirement shall conform with article 13 CISG. This does not apply to all amendments and additions to these GTC as well as the waiver of their application, which require the written form according to § 126 BGB. This applies also with regard to a possible waiver of the written form requirement.
(4)Should one or more provisions of these GTC or parts of a provision be invalid, this invalidity does not affect the validity of the remaining provisions, or of the contract as a whole. The parties undertake mutually to agree a valid regulation in place of the invalid provision, which comes economically closest to the invalid provision. The same applies in case of a loophole.
KMU LOFT Cleanwater GmbH June 2015