Kandinsky Deutschland GmbH General Conditions of Delivery
This translation is for information purposes only. In the event of a dispute only the German version is legally binding.
§ 1 Validity
(1) All deliveries, services and quotations from Kandinsky Deutschland GmbH (hereinafter referred to as the “Seller”) are based exclusively on these General Conditions of Delivery. These are an integral part of all contracts which the Seller concludes with his contractual partner (hereinafter referred to as the “Buyer”) for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or quotations to the Buyer, even if they are not separately agreed upon.
(2) Terms and conditions of the Buyer or other third parties shall not apply, even if the Seller does not specifically object to their validity in each case. Even if the Seller refers to a letter containing or referring to the terms and conditions of the Buyer or other third party, this shall not constitute an agreement on the validity of those terms and conditions.
§ 2 Quotation and conclusion of contract
(1) All quotations from the seller are subject to change and are non-binding unless they are expressly marked as binding or contain a specific period of acceptance. The Seller may accept orders within 14 days of receipt.
(2) the legal relationship between the Seller and the Buyer is based solely on the sales contract concluded in writing, including these General Terms of Delivery. This fully reflects all agreements between the parties regarding the subject matter of the contract. Oral promises made by the Seller prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.
(3) Additions and amendments to the agreements made, including these General Conditions of Delivery, must be made in writing to be effective. With the exception of managing directors or other authorized signatories, the Seller’s employees are not entitled to make oral agreements deviating from the written agreement. To comply with the written form, telecommunication transmission, in particular by fax or e-mail, shall be sufficient, provided that a copy of the signed declaration is transmitted.
(4) Information provided by the Seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as graphic representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics of quality, but descriptions or identifications of the delivery or service. Customary deviations which are due to legal requirements or which represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided that they do not impair the usability for the contractually intended purpose.
(5) The Seller reserves the ownership or copyright of all quotations and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Buyer. Without the express consent of the Seller, the Buyer may not make these items available to third parties, make them known, use them himself or have them used or reproduced by third parties, neither as such nor in terms of their content. At the request of the Seller, the Buyer must return these objects to the Seller in full and destroy any copies that may have been made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excepted from this is the storage of electronically provided data for the purpose of normal data backup.
§ 3 Prices and payment
(1) The prices are valid only for the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are in EUR ex works plus packaging, statutory value added tax (VAT), customs duties in the case of export deliveries, as well as fees and any other statutory charges.
(2) Insofar as the agreed prices are based on the Seller’s list prices and delivery is not to take place until more than four months after conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoice amounts are to be paid within thirty days without any deductions, unless otherwise agreed in writing. The date of receipt by the Buyer shall be decisive for the date of payment. Payment by cheque is excluded unless it is agreed separately in individual cases.
(4) Offsetting against counterclaims of the Buyer or withholding of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established or result from the same order under which the relevant delivery was made.
(5) The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, he becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Buyer and which jeopardise the payment of the Seller’s outstanding claims by the Buyer under the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
§ 4 Delivery and delivery time
(1) Deliveries are made ex works.
(2) Deadlines and dates for deliveries and services promised by the seller are always approximate unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) The Seller may – without prejudice to his rights arising from default on the part of the Buyer – demand an extension of delivery deadlines or a postponement of delivery deadlines by the period of time during which the Buyer does not fulfil his contractual obligations to the Seller.
(4) The Seller shall not be liable for deliveries that cannot be made or for delays in delivery if these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lock-outs, shortage of labour, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure of, incorrect or untimely delivery by suppliers) for which the Seller is not responsible. If such events make it considerably more difficult or impossible for the Seller to deliver and the hindrance is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended, or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Buyer cannot reasonably be expected to accept the delivery or service because of the delay, he may withdraw from the contract by immediate written declaration to the seller.
(5) The seller is only entitled to make partial deliveries if the partial delivery can be used by the Buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the client does not incur any significant additional work or additional costs because of this (unless the seller declares that he is prepared to bear these costs).
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms of Delivery.
§ 5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) The place of execution for all obligations arising from the contractual relationship is Düsseldorf, unless otherwise specified. If the Seller is also responsible for installation, the place of execution shall be the place where the installation is to be carried out.
(2) The mode of dispatch and packaging are at the reasonable discretion of the Seller.
(3) The risk shall pass to the Buyer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has assumed other services (e.g. dispatch or installation). If dispatch or handover is delayed as a result of a circumstance the cause of which lies with the Buyer, the risk shall pass to the Buyer from the day on which the delivery item is ready for dispatch and the Seller has notified the Buyer of this.
(4) Storage costs after transfer of risk shall be borne by the Buyer. In the event of storage by the Seller, the storage costs shall amount to (0.25) % of the invoice amount of the delivery items to be stored per week elapsed. We reserve the right to assert and prove further or lower storage costs.
(5) The Seller shall insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Buyer and at the Buyer’s expense.
(6) Insofar as an acceptance must take place, the object of sale shall be deemed to have been accepted:
- the delivery and, if the Seller also owes the installation, the installation has been completed,
- the Seller has notified the Buyer of this with reference to the notional acceptance according to this § 5 (6) and has requested the Buyer4 to accept the goods,
- since delivery or installation twelve working days have elapsed since the delivery or installation of the object of sale or the Client has started to use the object of sale (e.g. the delivered equipment has been put into operation) and in this case (six) working days have elapsed since delivery or installation and,
- the Buyer has failed to accept the goods within this period for any reason other than a defect notified to the Seller which makes the use of the purchased goods impossible or significantly impairs their use.
§ 6 Warranty, material defects
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Buyer arising from injury to life, body or health or from wilful or grossly negligent breaches of duty by the Seller or his vicarious agents, which shall expire in accordance with the statutory provisions.
(2) The delivered items must be carefully examined immediately after delivery to the Buyer or to the third party designated by the Buyer. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful inspection, they shall be deemed to have been approved by the Buyer if the Seller does not receive a written notification of defects within seven working days of delivery. With respect to other defects, the goods shall be deemed to be approved by the Buyer if the Seller does not receive a written notice of defects within seven business days after the time at which the defect became apparent; however, if the defect was apparent at an earlier time in normal use, that earlier time shall determine the commencement of the notice period. At the Seller’s request, a delivery item complained about shall be returned to the Seller carriage paid. If the complaint is justified, the Seller shall reimburse the costs of the cheapest shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In case of material defects of the delivered goods, the Seller is obliged and entitled to choose between repair or replacement within a reasonable period of time. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Buyer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the Seller’s fault, the Buyer may claim damages under the conditions set out in § 8.
(5) In the case of defects in components from other manufacturers which the seller cannot remedy for reasons of licensing law or for factual reasons, the Seller shall, at his discretion, either assert his warranty claims against the manufacturers and suppliers for the account of the Buyer or assign them to the Buyer. Warranty claims against the Seller for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or, e.g. due to insolvency, is futile. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Buyer against the Seller shall be suspended.
(6) The warranty shall not apply if the Buyer modifies the delivery item or has it modified by a third party without the Seller’s consent and the elimination of the defect is thereby rendered impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of remedying the defect arising from the modification.
(7) A delivery of used objects agreed with the Buyer in individual cases shall be carried out to the exclusion of any warranty for material defects.
§ 7 Property rights
(1) In accordance with the provisions of this § 7, the Seller shall be responsible for ensuring that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it for infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at his discretion and at his expense, either modify or replace the delivery item in such a way that no more third-party rights are infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Buyer by concluding a licence agreement with the third party. If the Seller does not succeed in doing so within a reasonable period, the Buyer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the Buyer are subject to the restrictions of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at his discretion, either assert his claims against the manufacturers and sub-suppliers for the account of the Buyer or assign them to the Buyer. In these cases, claims against the Seller shall only exist in accordance with the provisions of this § 7 if the legal enforcement of the above-mentioned claims against the manufacturers and sub-suppliers was unsuccessful or, e.g. due to insolvency, is futile.
§ 8 Liability for damages due to fault
(1) The Seller’s liability for damages, regardless of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, is limited in accordance with the provisions of this § 8, insofar as fault is involved.
(2) The Seller shall not be liable in the event of simple negligence on the part of his organs, legal representatives, employees, or other vicarious agents, unless it is a matter of a breach of material contractual obligations. Essential contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title and such material defects that impair its functionality or fitness for use more than only insignificantly, as well as consulting, protection and care obligations that are intended to enable the Buyer to use the delivery item in accordance with the contract or to protect life and limb of the Buyer’s personnel or to protect its property from substantial damage.
(3) Insofar as the Seller is liable for damages on the merits pursuant to § 8 (2), this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which he should have foreseen if he had exercised due diligence. Indirect damages and consequential damages resulting from defects of the delivery item are furthermore only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended.
(4) In the event of liability for simple negligence, the Seller’s obligation to pay compensation for material damage and any resulting further financial losses shall be limited to an amount of EUR 1,000 per case of damage, even if it involves a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of the Seller’s organs, legal representatives, employees and other vicarious agents.
(6) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 do not apply to the liability of the seller due to intentional behaviour, for guaranteed characteristics, due to injury to life, body or health or according to The German product liability law.
§ 9 Reservation of title
(1) The Seller reserves the right of ownership of the goods until the complete settlement of all claims from the current business relationship.
(2) Before transfer of ownership of the goods subject to retention of title, pledging or transfer of ownership by way of security is not permitted.
(3) The Buyer may resell the goods in the ordinary course of business. In this case, the Buyer hereby assigns to the Seller all claims arising from the resale up to the amount of the purchase price payable to the Seller. The Seller hereby accepts the assignment. The client is authorized to collect the claim. The Seller reserves the right to collect the claim himself if the Seller does not properly meet his payment obligations.
(4) If the goods subject to retention of title are combined or mixed, the Seller shall acquire co-ownership of the new item in proportion to the purchase price of the goods subject to retention of title to the value of the other processed items at the time of processing. If the goods subject to retention of title are combined or mixed in such a way that the Buyer’s item is to be regarded as the main item, the Buyer and the Seller agree here and now that the Buyer shall transfer proportional co-ownership of this item to the Seller. The Seller accepts this transfer.
(5) The Seller is obliged to release the securities to which the Seller is entitled at the request of the Buyer if the realisable value of the securities exceeds the claim to be secured by more than 10%. The Seller is free in the selection of the securities to be released.
§ 10 Final provisions
(1) If the Buyer is a registered trade, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between the Seller and the Buyer shall, at the Seller’s option, be Düsseldorf or the Buyer’s registered office. However, in these cases Düsseldorf shall be the exclusive place of jurisdiction for legal actions against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relationship between the Seller and the Buyer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply. Contract language is German.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective regulations shall be deemed agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.