General Terms and Conditions of Business of KLINGER GmbH, 65510 Idstein/Taunus
1. General - Scope of Application
All our services and deliveries shall be based on the present terms and conditions as well as all and any separate contractual agreements. Deviating terms and conditions of purchasing of Orderer shall not become contents of the contract, even by acceptance of the order. A contract shall come into force with the written order confirmation from us, subject to particular agreements.
If the General Terms and Conditions of Business have not been sent to Orderer with the quotation or handed to it on any other occasion, they shall be applicable if it knew or ought to know them from a previous business relationship.
We reserve rights of ownership and copyright to samples, estimates, diagrams and similar information of a physical and unphysical nature - also in an electronic form; they may not be made accessible to third parties. We engage only to make information and documents designated as confidential by Orderer accessible to third parties with its approval.
All our quotations shall be non-committal.
Agreements deviating from the present terms and conditions in individual cases shall only be binding if confirmed by us in writing. This shall particularly apply to documents belonging to the quotation such as illustrations, diagrams, statement of weights and measures.
The quality of the object of the contract shall be exclusively described in our quotations, order confirmation and matching documents without the same portraying a guarantee.
If two letters of confirmation containing deviating provisions cross, that of Vendor shall apply.
3. Scope of the delivery
Our written order confirmation shall be decisive for the scope of delivery, or the quotation in the event of a quotation on our part with binding by time and acceptance within the correct period, insofar as there is no order confirmation in good time.
4. Price, payment, dispatch and packaging
The prices valid on the date of delivery shall be decisive. Price increases after submission of a quotation or order confirmation shall be taken into account in invoicing. Call orders shall not substantiate a duty to supply. Here too, prices shall be calculated on the basis of the prices valid on the dates of the individual deliveries. Value Added Tax to the statutory amount in question shall be added to the prices.
The freight allowances stipulated in each case shall apply for our deliveries. Selection of the kind of dispatch shall be reserved for the delivery works as a matter of principle. In the event of consolidated consignments, the consolidation transport station closest to the destination shall be deemed as railway destination. Additional costs incurred from Customer's wishes deviating from this regulation shall be charged to Orderer.
Paper packaging shall be included in the price. All other packagings (e.g. boxes, crates etc.) used upon Orderer's request or necessary due to the nature of the commodities supplied shall be charged at production cost. Returning of packaging material shall not be possible.
In the cases in which a special packaging is considered necessary by us with a view to the dispatch commodities, but the latter is rejected by Customer, the defence of "insufficient packaging" cannot be claimed by Orderer in the event of damage.
Our invoices shall be due for payment free of postage and expenses.
We shall grant 2% discount on our invoices for payment within 14 days of the date of invoice.
We shall not be liable for punctual demonstration or production of protests on bills of exchange in the event of us declaring our agreement with use of bills of exchange. In protests on bills of exchange, all our claims shall become due for payment immediately. Expenses for bills of exchange shall not be borne by us.
The right to retention of payments or offsetting with counterclaims shall only accrue to Orderer to the extent that his counterclaims are undisputed or legally effective.
5. Delivery time
The delivery period shall commence with the date of the order confirmation, albeit not before provision of the documents, approvals, releases to be procured by Orderer and before receipt of any agreed down-payment.
The delivery period shall be complied with if the object of delivery has left the works or readiness for dispatch has been notified before its expiry.
The delivery period shall be extended suitably in the event of measures in the course of industrial disputes, in particular strokes and lockouts, also the occurrence of unforeseen obstacles outside our sphere of influence insofar as such obstacles can be proven to have a considerable influence on the production or delivery of the object of delivery. This shall also apply if one of the aforementioned circumstances occurs with sub-suppliers. We shall not be answerable for the aforementioned circumstances even if they occur during arrears already in existence. In important cases, we shall notify Orderer of the start and the end of such obstacles as soon as possible.
Orderer can withdraw from the contract without setting a period if the entire performance becomes impossible for us before the passage of risk. Over and above this, Orderer can withdraw from the contract if the implementation of a part of the delivery of an order becomes impossible and it has a justified interest in the rejection of the part delivery. If this is not the case, Orderer shall pay the contractual price due for the part delivery. The same shall apply in the event of inability to perform. Apart from this, Section 9.2 of the Terms and Conditions shall apply.
If we fall into arrears with the delivery, Orderer shall set us a suitable subsequent period for performance - taking the statutory exceptions into account. If we fail to comply with the period, Orderer shall be entitled to withdraw from the contract within the framework of the statutory provisions.
If Orderer incurs damages as a result of the arrears, it shall be entitled to demand lump-sum reimbursement for arrears. For each complete week of the delay, it shall amount to 0.5%, albeit no more than 5% all told of the value of the part of the overall delivery which cannot be used in good time or contractually as a result of the delay.
If dispatch is delayed at Orderer's request, it shall be charged the costs incurred by storage starting one month following notification of readiness for dispatch, albeit at least 0.5% of the amount of the invoice for each month for storage in our works. In addition, we shall be entitled to dispose of the object of delivery elsewhere and to supply Orderer with a suitably extended period in the event of setting and fruitless expiry of a suitable period.
If impossibility or inability to perform occurs during the arrears in acceptance of Orderer or if Orderer is answerable for these circumstances alone or to a major extent, it shall be obliged to consideration.
Further claims from arrears in delivery shall exclusively be based on Section 9.2 of the present terms and conditions.
6. Risk, passage and acceptance
Risk shall pass to Orderer no later than dispatch of the object of delivery, even if part deliveries are made or we have assumed further services, e.g. costs of dispatch or export and erection.
If not expressly rejected by Orderer, we shall conclude transport insurance for each consignment, the premium for which we shall charge at € 0.10 for each commenced € 25.00 value of commodities. Claims to insurance from transport damage can only be processed after transmission of the official railway or postage certification about the loss or the damage.
Possible credits as a result of transport damage or loss of consignments for which transport insurance has been concluded shall only be granted following reimbursement of the insurance amount by the insurance company.
If dispatch is delayed as a result of circumstances for which Orderer shall be answerable, risk shall pass to Orderer from the date of readiness for dispatch. However, we shall effect the insurances which Orderer demands at the latter's request and expense.
Objects delivered shall be accepted by Orderer notwithstanding the rights from section 8, even if they manifest inconsiderable defects.
Part deliveries shall be admissible.
7. Retention of title
We retain title to the object of delivery until receipt of all payments from the underlying contract.
We shall be entitled to insure the object of delivery against theft, breakage, fire and other damage at Orderer's expense insofar as Orderer cannot prove to have concluded the insurance itself.
Orderer may not sell, pledge or transfer the object of delivery by way of security. In the event of seizure, confiscation or other disposals by third parties, it shall notify us thereof without delay.
In the event of breach of contract by Orderer, in particular arrears in payment, we shall be entitled to take back the object of delivery following a reminder and Orderer shall be obliged to surrender. Claiming of a right of retention and seizure of the object of delivery by us shall not be deemed withdrawal from the contract.
An application for opening of insolvency proceedings shall entitle us to withdraw from the contract and to demand immediate return of the object of delivery.
Retention of title can also be claimed without us having withdrawn from the contract. § 449 II, German Civil Code, shall not apply.
We shall assume warranty for technical defects and defects in title, excluding other claims and subject to Section 9.2 of the Terms and Conditions, as follows:
The agreed quality of the contractual object owed by us shall result exclusively from the contractual agreements with Orderer and not from any other statements, brochures, consultancy and similar. Assumption of a guarantee shall not be connected with the description of the quality.
We shall consult to the best of our knowledge on the basis of our experience, albeit ruling out all and any liability. Statements and information concerning suitability and application or use of the object of the contract shall be non-committal unless this is an agreed property within the meaning of Section 8.1.
Orderer shall examine the commodities received for defects without delay after arrival. Obvious defects shall be notified in writing and with a specification without delay, albeit no later than five working days. The period shall commence with receipt of the commodities by Orderer. The object of sale shall be deemed approved if the notification is not in the correct form and/or period.
All parts proving to be defective as a result of a circumstance to be found before passage of risk shall be reworked or supplied new free of charge at our choice. Establishment of such defects shall be notified to us in writing without delay. Replaced parts shall become our property.
Defects shall be remedied at our choice by reworking or replacement delivery. Orderer shall grant us the necessary time and opportunity for carrying out all the reworking and replacement deliveries appearing necessary; if not, we shall be released from the liability for the consequences thereof. Orderer shall only have the right to have the defects remedied itself or by third parties and to demand reimbursement of the necessary expenditure from us in urgent cases of jeopardy of operational safety or to avert disproportionately great damage. We shall also be informed by Orderer without delay in such urgent cases.
Of the costs incurred by the reworking or replacement delivery, as the case may be, we shall bear the costs of the replacement item including dispatch and the suitable costs of dismantling and fitting, further, if this can fairly be demanded according to the situation of the individual case, the costs of any necessary provision of fitters and ancillary workers insofar as the notification of defects proves to be justified. If Orderer or a third party reworks improperly, there shall be no liability on our part for consequences resulting therefrom. The same shall apply for amendments to the object of delivery carried out without our prior approval.
Within the framework of the statutory provisions, Orderer shall have a right to withdrawal from the contract if we - taking the statutory exceptions into account - allow a suitable period set for us for reworking or replacement delivery on account of a defect to expire fruitlessly. If only an inconsiderable defect exists, merely a right to a reduction of the contractual price shall accrue to Orderer. Apart from this, the right to reduction of the purchase price shall be ruled out.
No liability shall be assumed in particular in the following cases:
Unsuitable or improper use of the object of delivery by Orderer or by third parties, faulty assembly or commissioning of the object of delivery by Orderer or third parties, natural wear and tear of the object of delivery, faulty or negligent treatment of the object of delivery by Orderer or third parties, improper maintenance of the object of delivery by Orderer or third parties, use of unsuitable operating equipment by Orderer or third parties, faulty construction work, unsuitable foundations, chemical, electrochemical or electrical influences - insofar as we shall not be answerable for these cases.
The warranty period shall amount to 12 months.
If the object of delivery cannot be used contractually by Orderer as a result of omitted or faulty implementation of suggestions or consultancy made before or after the conclusion of the contract as well as other contractual subsidiary obligations - in particular instructions for operation and maintenance of the object of delivery - through our fault, the regulations of Sections 8 and 9.2 shall apply accordingly, ruling out further claims of Orderer.
We shall only be liable for damage not occurring to the object of delivery itself - regardless of the legal reason:
- for malice aforethought
- for gross negligence of the management or senior employees
- for culpable injury of life, limb, health
- for defects which we have deceitfully failed to notify or the absence of which we have guaranteed
- for defects in the object of delivery to the extent that there is liability for damage to persons or property on privately used objects pursuant to the Product Liability Act.
In a culpable breach of essential contractual obligations, we shall also be liable for gross negligence of non-senior employees and for slight negligence, in the latter case limited to the reasonably foreseeable damage typical for the contract. Further claims shall be ruled out.
All claims by Orderer - regardless of the legal reason - shall be barred by limitation after 12 months. The statutory periods shall apply for deliberate or deceitful conduct and for claims according to the Product Liability Act.
11. Right to withdrawal on our part
In the event of unforeseen incidents within the meaning of Section 5.3 of the Terms and Conditions, insofar as they considerably change the economic importance or the contents of the performance or have a considerable effect on our operations, and in the event of subsequent establishment of impossibility of performance, the contract shall be adapted suitably. To the extent that this is not economically justifiable, the right to withdraw from the contract totally or partially shall accrue to us. No claims to damages shall accrue to Orderer on account of such a withdrawal. To the extent that we make use of the right of withdrawal, we shall notify Orderer thereof without delay after establishing the implication of the incident, even if an extension of the delivery period has been agreed with Orderer to start with.
12. Applicable law, venue
The law of the Federal Republic of Germany decisive for the legal relationships of inland parties amongst one another shall be exclusively applicable for all legal relationships between ourselves and Orderer. Place of performance shall be Idstein. The venue for all disputes resulting from the contractual relationship shall be Idstein insofar as Orderer is a fully fledged merchant, a public-law legal entity or a public-law special fund.
13. Separability clause
Should one of the aforementioned provisions be legally ineffective, the effectivity of the remaining provisions and of the remainder of the contract shall not be affected. All and any ineffective provisions shall be replaced by new regulation with the same commercial intention as their objective. Insofar as provisions have not become integral parts of the contract, the content of the contract shall be based on the statutory provisions.
Data concerning our customers shall be stored and processed by us on EDP insofar as this is necessary for proper handling of the contractual relationships.