General Terms and Conditions

 

 

Status of: 03/2012

 

(I) Applicability and Written Form Requirement

1The following general terms and conditions and service execution of the company Kübrich Ingenieurgesellschaft mbH & Co.KG apply to all deliveries and services performed by Kübrich ING. to companies in accordance with §14 of the BGB (German Civil Code). All legal  relationships (including future ones) between Kübrich ING. and the Ordering Party shall be governed by the Terms and Conditions of Sale of KÜBRICH ING. in their respectively valid version. Deviating terms and conditions of the Purchasing Party shall not constitute a part of the contract, even when an order has been accepted.

2 Where framework agreements have been entered into between the Parties, these shall take precedence. They shall be complemented by the present terms and conditions, unless specific arrangements have been made.

3 Changes and additions to a contract must be made in writing under the pain of nullity; this also applies to the very written form requirement

(II) Offer, Offer Documentation and Order Confirmation

1 Offers are always subject to change, as far as they are not limited in time.

2 The documentation forming part of the offer, such as illustrations, descriptions and drawings,dimensions and weights are only approximate, unless they are expressly designated as binding.

3 Any titles and copyrights to cost estimates, drawings, patterns and other documents, whether in hard copies or in any other form– including the electronic format – are reserved by the Supplier; They must not be disclosed to or made available to a third party, without the Supplier’s consent and, upon request, they are be returned immediately. The Supplier hereby undertakes not to disclose to third
parties the information and documents designated by the Ordering Party as confidential without their express permission to do so.

4 A contract enters into force – unless otherwise agreed – with the written order confirmation issued by the Supplier. The Order  confirmation in conjunction with the product description agreed-upon with the Supplier might take precedence over the content of the contract.

(III) Prices and Payment Terms

1 All prices apply ex works (Incoterms ®2010) and do not include packaging, freight, postage and value insurance. Prices are subject to  VAT in the respectively applicable amount.

2 Unless otherwise agreed, a delivery to an Ordering Party with whom no hitherto business relationship has ever existed, shall only be  performed against advance payment or cash on delivery. In the case of an on-going business relationship the payment for goods/invoices shall be effected within 10 days with a 2% discount or net within 30 days. For contracts with a value of more than € 5,000, the payment is
effected in such a way that one-third of the invoice amount must be settled upon receipt of the order confirmation, another third upon receipt of notification that the products are ready for shipment and the final third within 30 days of invoicing.

3 Cheques and drafts shall only be accepted as performance in fulfilment. Bills of exchange must be discountable. Discount and  collection charges shall be borne by the Ordering Party and are payable immediately without deduction upon the issuance wof an invoice.

4 The Ordering Party shall have the right to withhold payments or to settle counterclaims, only insofar as their counterclaim is undisputed or non-appealable or ready for decision.

(IV) Delivery Times and Delivery Delays/ Acceptance/Non-Acceptance

1 The delivery period begins with the date of the order confirmation, but not before the unification and clarification of all technical queries and required documents. Compliance on the part o the Supplier implies that the Ordering Party has met all their obligations, such as  provision of any relevant documentation, approvals and clearances, or a down payment. If this is not the case, the delivery period shall be extended accordingly. This does not apply if the Supplier is responsible for the occurrence of the delay.

2 Compliance with the delivery period shall be subject to correct and punctual self-delivery. The Supplier shall notify the Ordering Party of any foreseeable delays as soon as possible.

3 The delivery deadline is met, if prior to its expiry the delivery item has left the plant of the Supplier or the Ordering Party has been notified of its readiness to be delivered. If acceptance is to be officially effected, – except for a grounded rejection of acceptance – the acceptance date shall prevail, or, alternatively, the notification of readiness for dispatch.

4 Should dispatch or acceptance of the delivery item be delayed for reasons, for which the Ordering Party is responsible, they shall bear the costs arising from the delay, as calculated, from one month after notification of dispatch / readiness for acceptance, particularly the storage expenses. When the goods are stored in the Supplier’s plant, they may sub-calculate up to 0.5 per cent of the invoice amount
for each month, however, without exceeding 10% of the contract value of the declined delivery items. The Ordering Party is at liberty to  demonstrate and prove, if necessary, that the storage costs of Kübrich ING. could in fact be lower. Following a setting and a fruitless expiry of a reasonable period of time, Kübrich ING. is entitled to dispose otherwise of the delivery item, and to supply the Ordering Party within an appropriately extended period of time. Further claims, in particular the rights under § § 293 et seq. (304) of the BGB (German Civil Code) shall be retained by Kübrich ING. taking into account the services of the Ordering Party. The same applies to their rights under § § 280 et seq. of the BGB and to the claim of performance.

5 Compliance with the delivery period presupposes the fulfillment of the contractual obligations of the Ordering Party.

6 If the non-compliance with the delivery period is due to force majeure, labour disputes or other events which are beyond the control of the Supplier, the delivery date shall be extended accordingly. Beginning and end of such hindrances shall be notified by the Supplier to the Ordering Party as soon as possible.

7 The Ordering Party may withdraw from the Contract without notice, if the complete performance becomes unfeasible for the Supplier is prior to the transfer of risk. Furthermore, the Ordering Party may withdraw from the Contract, whenever a full or a partial delivery is unfeasible for an order placed and whenever they have a legitimate interest in the rejection of a partial delivery. If this is not the case, the Ordering Party shall pay the contractual amounts due for partial deliveries. The same applies to inability of the Supplier to perform. In  ddition, Section VII 2 is also applicable. Should the impossibility or incapacity occur during the default period of acceptance, or if the Ordering Party is solely or predominantly responsible for these circumstances, they shall be obliged to perform a return service.

8 If the Ordering Party refuses the acceptance / non-acceptance of the contract object, a delivery or a service, then KÜBRICH ING. shall be entitled to set for them a reasonable deadline for acceptance. If the Ordering Party has failed to accept the delivery or provision of the contract subject matter within the time allowed, then KÜBRICH ING. shall be entitled, without prejudice to their right to demand the performance of the contract, to withdraw from the contract or to claim damages for its non-performance. In such an event, KÜBRICH  iNG. may demand – even without proof of actual damages and without prejudice to the possibility of lodging a claim against higher actual damages – liquidated damages in the amount of 25% of the net order value in the case of deficient standard products and in the amount of 100% for custom-made-products which cannot be utilised otherwise. The Ordering Party is at liberty, to prove that the actual damages suffered by KÜBRICH ING. were in fact lower.

(V) Transfer of Risk, Acceptance

1 The risk is transferred to the Ordering Party when the goods subject to delivery have left the plant, even if partial deliveries are made or the Supplier has taken over other services, such as shipping costs or delivery and installation. If acceptance is to be made, this is crucial for the transfer of risk. It must be conducted immediately on the acceptance date, alternatively following a notification on the part of the Supplier of readiness for acceptance. The Ordering Party shall not refuse the acceptance in the presence of a minor defect. The  Shipment shall be insured be by the Supplier at the expense of the Ordering Party against in-transit damages and, if so requested by the Ordering Party, and at their expense as well, against other insurable risks.

2 If the shipment or the acceptance is delayed or remains unexecuted, as a result of circumstances that are not attributable to the  supplier, then the risk is carried over onto the Ordering Party from the date of notification of dispatch or readiness for acceptance. The Supplier undertakes to conclude insurance contracts on behalf of the Ordering Party, such as they may require, and at their expense.

3 Partial deliveries are permissible if reasonable for the Ordering Party.

(VI) Claims for Defects

The Supplier shall be held responsible for the defects of the delivery to the exclusion of further claims – subject to the provisions of Section VII – as follows:

1 At the discretion of the Supplier, all parts which have proven to be defective due to circumstances that arose before the transfer of risk, are to be improved or replaced free-of-charge. The discovery of such defects shall be reported to the Supplier immediately in writing. Replaced parts become the property of the Supplier.

2 Following an agreement with the Supplier, the Ordering Party shall grant the Supplier the necessary time and opportunity to carry out all the repairs that they deem necessary and substitute deliveries; otherwise the Supplier shall be exempt from any liability for the  consequences that might arise from the identified deficiencies. Only in urgent cases of risk to operational safety or to prevent excessive
damages, the Supplier shall be notified immediately, whereby the Ordering Party shall have the right to remedy the defect by themselves or by a third party and to demand from the Supplier a compensation for the necessary expenses.

3 Of the costs incurred in the process of repairs or replacements, the Supplier shall bear the cost of the replacement part and its hipping, provided that the complaint is justified. They shall also bear the costs of assembly and disassembly, as well as the costs of any necessary employment of technicians and support staff, including travel expenses, provided that this does not impose a disproportionate burden on the Supplier.

4 Within the framework of statutory provisions, the Ordering Party is entitled to withdraw from the contract, if the Supplier allows the  reasonable period of time set for them for the repair or replacement of the defect to elapse fruitlessly – in consideration of the statutory exceptions. If there is only a minor defect, the Ordering Party shall only be entitled to reduce the contract price. Otherwise, the right to
reduce the contract price shall be excluded. Further claims shall be governed by Section VII 2.

5 In particular, no liability is assumed in the following cases:

a) inadequate or improper use, faulty assembly or commissioning by the Ordering Party or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences, provided that they are not due to the fault of the Supplier.

b) the non-use of the engine protection switch.

c) improper repair of the object covered by the contract by the Ordering Party or by a third party they contracted, unless the Ordering  Party proves that the modification or repair work could not have been causal for the damage that has occurred.

6 Moreover, the following constitute requirements for the assertion of warranty claims:

a) the Ordering Party informs Kübrich ING in writing of the obvious defects within a period of 2 weeks from indicating receipt of the goods

b) the Ordering Party has properly fulfilled their obligation to inspect and complain, as incumbent on them pursuant to § 376 and § 377 HGB (German Commercial Code).

7. If due to a legal and / or material defect, the Ordering Party opts for a withdrawal from the contract, following a failed subsequent  completion, they shall not be entitled to lodge any claims for damages caused by the defect. If the Ordering Party chooses compensation for damages, after a failed subsequent completion, the goods shall remain with them, if such a solution is reasonable. The damages will be limited to the difference between the purchase price and the value of the defective item. This does not apply if KÜBRICH ING. has caused the breach of contract maliciously.

8. The warranty period shall be governed by Section VIII.

9. As a matter of principle, only the specific product description issued by the manufacturer as constituting the base of the contract,  functions as agreed product quality. Public statements, endorsements or advertising organised and effected by the manufacturer or third parties do not represent a contractual quality of the goods.

10. If the Ordering Party receives defective assembly instructions, KÜBRICH ING. shall only be obliged to deliver defect-free assembly  instructions and only if the defect in the instructions hinders a proper installation. In the event of installation problems that arise directly as a result of faulty assembly instructions, the Ordering Party must contact Kübrich ING. by phone, who shall then act in an advisory capacity during their usual business hours and known to the Ordering Party.

11. As a matter of principle, the Ordering Party shall not receive any guarantees in the legal sense from Kübrich ING. Any third-party manufacturer’s warranties remain unaffected.

12. If Kübrich ING. discontinues the production of goods, which the Ordering Party would purchase from them in the past, then Kübrich ING. shall be obliged, to supply them with the spare parts for the goods that are no longer in the Kübrich ING. sales offer within a period of 8 years, beginning with the cessation of production, whereby spare parts can also be used instead of the original parts, as long as their quality matches that of the original parts.

13. With regard to merchantability and the factual and legal operational readiness, Kübrich ING. shall be responsible for the  implementation of supplies and services in the territory of the Federal Republic of Germany, unless the supplies or services available  from Kübrich ING. are expressly provided in or for another country according to terms of a contract. It is the sole responsibility of the
Ordering Party to ensure that during the intended further supply or use in countries outside of the Federal Republic of Germany, the applicable local regulations on import, embargo, approvals and permits, as well as all provisions relating to the use and operation of the supplies of Kübrich ING . are fully observed. This also applies to the compliance with country-typical operating conditions (eg, voltage and main frequency, security and health and safety provisions, etc.).

14. For used goods, the Supplier’s liability for defects is excluded.

(VII) Liability

1. In case the delivered product cannot be used by the Ordering Party as stipulated in the contract as a result of the Supplier‘s fault or failed execution or implementation of suggestions made and advice given before or after the conclusion of the contract, or as a result of the infringement of other contractual collateral obligations – in particular with regard to instructions for operation and maintenance of the
delivered goods – then the stipulations of sections 6 and 7 shall be valid accordingly, to the exclusion of further claims of the Ordering Party.

2. Regardless of their legal grounds, for damages that are not caused to the delivered item itself, the Supplier shall only be liable in the following cases:

a) intent,

b) gross negligence of the part of the owner / executive officers or other employees,

c) in the case of culpable injury to life, body and/or health,

d) fraudulently concealed defects whose absence was guaranteed

e) defects in the delivery item to the extent that liability ensues under the Product Liability Act for personal injury or damage to privately
used items.

In case of culpable violation of essential contractual obligations, the Supplier is also liable for gross negligence of non-managerial employees, whereby slight negligence is limited to the contract-typical, reasonably foreseeable damage. Further claims are excluded.

(VIII) Statute of Limitations

All claims of the Ordering Party – lodged on whichever legal grounds – expire within 3000 operating hours, but no later than 12 months, starting with the acceptance of the goods / discontinuance of work performance. In the case of replacement delivery, according to Section VI, the statute of limitations commences again only for this delivery / spare parts.

(IX) Retention of Title

1 All deliveries and services are subject to retention of title. Delivered goods remain the property of KÜBRICH ING until the purchase price, together with any other charges and claims of Kübrich ING. – such that may arise from the ongoing business relationship – have been paid in full by the Ordering Party.

2 If the goods are processed or used by the Ordering Party, then the processing / exploitation process also ensues for Kübrich ING., who is then considered as a manufacturer within the meaning of § 950 BGB (German Civil Code) and retains the title to the intermediate or final product. In case of processing with other goods not owned by the Ordering Party, Kübrich ING. shall acquire coownership to the new
item in proportion to the value of the delivered goods to the value of the third-party goods at the time of processing.

3 The Ordering Party is entitled to resell the delivered goods and to sublicense them as part of the concluded agreement, revocable in the ordinary course of its business operations. As a precaution, the Ordering Party shall cede to Kübrich ING., all claims related to the resale and the business relationship with their buyers with ancillary rights in the value of the goods supplied in each case. Kübrich ING.
is obliged to notify the Ordering Party of the assignment of the claim on the part of the the buyers of the Ordering Party at all times. Full names and addresses of the buyers of the Ordering Party shall be submitted Kübrich ING. upon their request without delay.

4 The Ordering Party is obliged to insure the delivered goods at their own expense against theft, breakage, fire, water and other  damages, as long as Kübrich ING. reserves the title to the delivery item and they are obliged to produce a proof of such insurance to Kübrich ING. upon their request.

5 The Ordering Party may neither pledge the delivery item nor to transfer the goods by way of security. In case of seizure, confiscation or other disposal by third parties, Kübrich ING. must notify the Ordering Party thereof immediately. If Kübrich ING. suffers damages due to  non-or late notification (eg loss of rights), the Ordering Party shall be liable to pay compensation therefore.

6 In the event of a breach of contract on the part of the Ordering Party, in particular their default in payment, Kübrich ING. shall bve  untitled to recover the goods after a reminder and the Ordering Party shall be obliged to surrender.

7 The assertion of title and the seizure of the goods by Kübrich ING. do not constitute withdrawal from the contract, unless the provisions on consumer loan contracts (§ § 491-498 BGB) apply.

8 Kübrich ING. hereby undertakes to release the securities to which they are entitled to the Ordering Party upon their request, to the extent that the realisable value of the collateral exceeds the secured claims by more than 20%. The choice of the securities to be released is incumbent upon Kübrich ING.

(X) Trade Mark Rights, Copyrights, Non-Disclosure

1 All rights to patents, utility models and industrial designs, trademarks, and other property rights and copyrights in the subject matter hereof and services shall remain the property of the entitled owners. This applies in particular to product names for software and  trademark rights.

2 The Contracting Parties hereby undertake to treat all not overt commercial and technical details, the knowledge of which they may obtain through the business relationship as a trade secret.

3 drawings, tools, software, forms , devices, models, templates, patterns, samples and similar objects provided by or for Kübrich ING, whether used or made available, are and shall remain the property of Kübrich ING. They may not be disclosed to unauthorised third parties, or otherwise made accessible to them. If the above items were manufactured for Kübrich ING., they already constituted property of Kübrich ING at their preparation or production. The reproduction of such items is permitted only in the context of operational requirements and in accordance with the provisions of the patent, trade mark, copyright and competition law.

4 contractors of the Ordering Party shall be bound accordingly.

5 The Ordering Party may not refer to their business relationship with Kübrich ING for advertising purposes without their prior written consent thereto

(XI) Infringement of the Rights of Third Parties

1. Should any claim be brought against the Ordering Party by third parties due to direct infringement of industrial property rights including copyrights related to the goods and services by KÜBRICH ING, then they shall indemnify the ordering Party against any damages that may be awarded against the Ordering Party or agreed by way of settlement including all court costs and lawyer’s fees, subject to the
following conditions:

a) The Ordering Party shall inform Kübrich ING. immediately of any warning being made or given by a third party, without having previously initiated anysteps of a defence and/or having referred to a lawyer. This does not include immediate actions that must be taken before Kübrich ING. can be informed.

b) Only Kübrich ING is entitled to introduce defence measures and to entrust lawyers with the implementation of protective measures and/or the issue of declarations and/or other negotiations. At the request of Kübrich ING., at their expense, the Ordering Party shall hire a lawyer to represent them.

c) The Ordering Party shall notify KÜBRICH ING. immediately and continually of the matter and, in particular, they shall make available all the necessary information and documents.

(XII) Place of Performance and Jurisdiction

The place of service performance and jurisdiction for all claims arising from the business relationship, in particular with regard to our  deliveries, shall be the City of Bamberg, also if the sales or deliveries have been conducted by a branch. This jurisdiction shall also apply to disputes pertaining to the creation and the effectiveness of the contractual relationship. Furthermore, the Supplier may also initiate legal proceedings before the court competent for the domicile of the Ordering Party or in any other competent court of law. The only governing law shall be that of the Federal Republic of Germany, without the possibility of recourse to UN-Convention on Contract for the International Sale of Goods (CISG).