General terms and conditions of KMU LOFT Cleanwater GmbH
(1) These general terms and conditions (GTC) of KMU Loft Cleanwater GmbH (hereinafter: "KLC" or "we") apply to all business concerning delivery by KLC to the customers, unless the customer has their office in Germany.
(2) The scope of these GTC is limited to contracts with contractors, legal persons under public law or a public fund. These GTC do not apply in transactions with consumers.
(3) These GTC apply exclusively. The inclusion of conditions of the customer contrary to, supplemental to or deviating from our GTC are 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 without the need for renewed inclusion.
§2 RIGHTS AND DOCUMENTS
(1) Offers, cost estimates and other documents shall remain our property and may only be made available to third parties with prior 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. They may only be made accessible to third parties, insofar as we have expressly given our written consent for this.
(3) The exchange of the aforementioned objects does not constitute a transfer or granting of rights (licence for use).
§3 CONTRACT CONCLUSION
(1) Our offers are subject to confirmation and non-binding unless expressly stated otherwise therein.
(2) The contract is concluded by our written order confirmation or performance. We are entitled to accept an offer put forward by the customer by written order confirmation within ten working days of receipt of the offer by us. If the contract is concluded by performance, this must be rendered within three weeks of the receipt of the customer's offer by KLC. Otherwise no contract is concluded.
§4 CONTRACTUAL CONTENT
(1) The contractually owed performance shall be determined according to the agreement, in particular the order confirmation.
(2) The agreement of a warranty must be made in writing to be effective (§ 126 of the Civil Code (BGB)).
(3) 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.
§5 DELIVERY TIME; DELIVERY PERIOD; FORCE MAJEURE
(1) Subject to different regulation in individual cases, delivery times are approximate. The actual delivery date will be announced by KLC with adequate lead time.
(2) The start of an agreed 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, 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 partners (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 withdraw from 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.
§6 TRANSFER OF RISK
(1) The risk of accidental loss is passed upon delivery to the customer, their carrier or a third party designated by them ex works Kirchentellinsfurt or ex works Hausen (Incoterms 2010 ex works).
(2) If the customer does not accept the goods declared ready for delivery at the time of delivery (§ 5), the risk of accidental loss passes to the customer at the time of delivery.
§7 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 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.
§8 PRICES; PAYMENT TERMS; PRICE ADJUSTMENT
(1) All prices are net prices and are plus the respective applicable VAT.
(2) The customer shall bear all other such costs, in particular for the handling of payment, transport, import and export duties, fees, etc.
(3) Unless a different agreement exists in individual cases, all prices are ex works Kirchentellinsfurt and Hausen (EXW Incoterms 2010).
(4) The deduction of cash discount requires special agreement in individual cases.
(5) Payments are due within ten (10) days of the transfer of risk.
(6) 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.
§9 NOTIFICATION OF DEFECTS
(1) The customer is obligated to inspect the services performed for freedom from defects, within ten (10) working days of the transfer of risk and immediately to report discovered defects, within no more than three (3) working days.
(2) If a defect is discovered which was not recognizable in the inspection in accordance with point 1, this must be notified within three (3) working days of actual discovery.
(3) Any defects discovered are to be notified to us 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 inspection and notification obligation, the performance is deemed accepted and they are not entitled to warranty rights. This does not apply if we have fraudulently concealed the defect.
(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.
(1) KLC shall render subsequent performance through rectification (repair) or replacement (delivery of a defect-free item). The choice of the type of remedy is incumbent on KLC.
(2) KLC is entitled to make subsequent performance within a reasonable period of time.
(3) Claims for warranty from defects, which are due to improper handling by the customer or the disregard of the instructions for use, are excluded.
(4) Warranty claims for defects - 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, as well as non-identifiable defects.
(5) Section 11 applies additionally to the assertion of claims for damages.
§ 11 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 according to the statutory provisions in the event of culpable violation of essential contractual obligations. However, the liability is limited to the contract-typical, foreseeable damage, if KLC does not intentionally or by gross negligence violate essential contractual obligations. Essential contractual obligations are those which are essential for the achievement of the purpose associated with the contract, and on whose compliance the customer can rely.
(3) KLC is liable for grossly negligent and intentional violation of non-essential contractual obligations.
(4) KLC is liable in accordance with the provisions of product liability law.
(6) Otherwise, liability is excluded.
§12 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.
(3) Points 1 and 2 do not apply if a customer would hereby be denied the assertion of a claim which has a close synallagmatic link with the claim asserted by KLC.
§13 RETENTION OF TITLE
(1) Goods supplied by us remain our property (reserved goods) until full payment of all claims arising from the business relationship. The customer is entitled to dispose of the reserved goods in proper business transactions. In the case of a running account, the reserved property serves as security for the balance claim resulting in favour of KLC.
(2) The customer is obligated to insure the goods adequately at their own expense against fire, water and theft.
(3) The processing or transformation of the reserved goods by the customer is always done for KLC. If reserved goods are processed into a new item together with other objects not belonging to KLC, KLC acquires co-ownership of the new item. The co-ownership share is calculated according to the value of the reserved goods in relation to the value of the other processed or altered items at the time of the processing or transformation.
(4) If a combination or mixing of the reserved goods into a single thing is undertaken by the customer and one of the other items is to be seen as the main object, KLC is entitled to pro rata ownership of the resulting item. The co-ownership share is calculated according to the value of the reserved goods in relation to the value of the other combined or mixed items at the time of combining or mixing. The customer already assigns this co-ownership to KLC, whereby KLC already accepts the assignment.
(5) The customer already assigns claims against third parties resulting from the resale of the reserved goods along with all ancillary rights already now as security to KLC. KLC accepts this assignment. The customer is obligated to reserve ownership of the goods from their customers until the full payment of the purchase price. KLC is authorized to collect the accrued purchase price claims for the account of KLC up until revocation or until suspension of payment to KLC. The customer is not entitled to the assignment of this claim. KLC will only revoke the authorization to collect, if the customer is in default of payment or a request for commencement of insolvency proceedings over the assets of the customer has been made. In case of the revocation of the direct debit authorization, the customer shall notify KLC of the data necessary for the collection of the demand by submitting the corresponding supply contracts with their customers, the invoices and an overview of the payments of the customers.
(6) The customer shall immediately inform KLC in text form of any access by third parties to goods, of which KLC has ownership, in particular also execution measures in the reservation commodity and the demands of KLC, and to convey the information and documents necessary for a defense.
(7) Insofar as the realisable value of the security rights to which KLC is entitled exceeds by more than 10 percent all claims against the customer not yet paid to KLC, KLC is obligated, at the request of the customer, to release of the security rights. KLC is entitled to the selection of the securities rights to be released.
§14 COURT OF JURISDICTION, APPLICABLE LAW
(1) The exclusive Court of jurisdiction is the Court competent for the headquarters of KLC in Kirchentellinsfurt, Germany.
(2) KLC is entitled to sue the claimant at their general Court of jurisdiction.
(3) The law of the Federal Republic of Germany shall apply.
§15 WRITTEN FORM
(1) All amendments and additions to these GTC as well as the waiver of their application and their validity require the written form according to § 126 BGB. This applies also with regard to a possible waiver of the written form requirement.
§16 SEVERABILITY CLAUSE
(1) 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.
(2) The parties undertake mutually to agree an effective regulation in place of the invalid provision, which comes economically closest to the invalid provision.
Points 1 and 2 shall apply accordingly in the case of a loophole.
KMU LOFT Cleanwater GmbH, June 2015