EDITION 1/2015
I. General provisions
1. The following terms and conditions apply to all orders with business owners placed in the course of business. Unless they are expressly accepted by the supplier, contrary terms and conditions of the purchaser shall not be binding on the supplier, including in cases where no objection is provided to them. Consumers for the purposes of section 13 of the German Civil Code (BGB) will not become parties to any contract and will therefore not be supplied.
2. Any amendment or addition to this contract must be in written form in order to be effective, unless the amendment or addition is implemented through an individual agreement negotiated directly between the parties. This also applies to changes to this requirement for the written form.
II. Offers and quotes
1. Our offers and quotes are subject to confirmation and without obligation, unless we have expressly designated the offer or quote as being binding.
2. Cost estimates are non-binding. The right of prior sale is reserved.
3. The documents forming part of the quote, such as illustrations, designs, weight and measurement information are merely approximate values unless they are expressly designated as binding. The supplier retains the title, copyright and other property rights to cost estimates, designs and other documents; these may not be made accessible to third parties unless our written consent has been expressly provided for this.
4. We reserve the right to make improvements and changes which deviate from quotes and brochures.
III. Scope of the delivery
1. The supplier‘s written order confirmation shall determine the scope of the delivery; in the event that a quote or offer is provided by the supplier with a commitment in terms of time and the quote or offer is accepted within this time, then the quote or offer shall determine the scope of the delivery unless an order confirmation has been provided in good time.
2. Side agreements or amendments must be confirmed in writing by the main plant.
IV. Price, payment and default
1. Calculations are based on our prices as applicable on the delivery date plus VAT at the statutory amount.
2. Prices are ex works in EUROS. Installation, assembly and packaging of stationary machinery will be charged separately in accordance with the Kolbe terms and conditions of assembly. Net payment shall be due immediately for assembly and repair costs.
3. Unless otherwise stated the supplier’s charges shall be payable 30 days following delivery. In the event of default of payment then interest on default may be charged at 8.27 percent above the relevant base rate of the European Central Bank, without prejudice to any further rights.
4. The purchaser shall not be entitled to offset claims against any purported counter-claims which are disputed by the supplier.
5. The purchaser shall not be entitled to withhold payment in the event of defects, unless the delivery is obviously defective or the purchaser is obviously entitled to refuse acceptance of the delivery. In such a case the purchaser shall only be entitled to withhold payment if the amount withheld is reasonably proportionate to the defects and the expected costs of subsequent performance (in particular rectification of a defect). The purchaser shall not be entitled to assert claims or rights on account of defects if it has not provided due payments and to this extent the amount due (including any payments made) is reasonably proportionate to the value of the delivery which is subject to the defects.
V. Payment terms
Unless otherwise agreed with the supplier in writing, the purchaser shall pay in EUROS following delivery of the goods:
a) net within 30 days.
b) deliveries to end-customers will only be made
following advance payment – there will be no payment on delivery.
VI. Delivery time
1. The delivery period shall start once the order confirmation is sent, but not before the documents, approvals or releases to be procured by the purchaser have been provided or before any agreed advance payment has been received.
2. We shall be under no obligation to provide further deliveries before payment in full has been received for invoice amounts which are due. If the purchaser is in default with a due payment then following a warning the supplier may demand payment in cash before delivering the goods for all deliveries still outstanding from all transactions. This shall not apply if the purchaser is in default of payment through no fault of its own.
3. In all other respects the delivery period shall be deemed to have been met if the item to be delivered has left the plant or readiness for shipment has been communicated to the purchaser before the period expires.
4. The delivery period shall be reasonably extended in the event of actions within the framework of industrial conflicts, in particular strikes or lockout, as well as in the event of unforeseen obstacles which are beyond the will of the supplier. This shall also apply if these circumstances occur with sub-suppliers.
5. The supplier shall be liable in accordance with the statutory provisions for delays with performance in the event of wilful intent or gross negligence on the part of the supplier or a representative or vicarious agent. However, in the event of gross negligence the supplier‘s liability shall be limited to foreseeable damage which is typical for the contract. Any further claims of the purchaser shall be excluded – including in cases where a deadline for performance set for the supplier has expired. This limitation shall not apply in the event of a culpable breach of essential contractual obligations. However, claims for compensation for culpable breaches of essential contractual obligations shall be limited to foreseeable damage which is typical for the contract, unless sentence 1 also applies to the relevant case at the same time. Any further liability is excluded for default of delivery for which the supplier is responsible. The purchaser‘s right to withdraw from the contract in accordance with no. 1 of these terms and conditions remains unaffected. There is no change in the burden of proof to the detriment of the purchaser associated with the preceding regulations.
6. If the shipment is delayed at the purchaser‘s request or the latter is at fault for such a delay, we shall be entitled to invoice the goods following a reasonable period and to supply the purchaser with a period which has been reasonably extended accordingly or to dispose of the delivery item elsewhere. The goods will be stored at the purchaser‘s expense and risk.
VII. Transfer of risk and acceptance
1. Risk shall be transferred to the purchaser no later than the point at which the goods are shipped, including in cases of partial deliveries. Partial deliveries shall be permitted provided that this is reasonable for the purchaser.
2. If the shipment is delayed as a result of circumstances for which the purchaser is responsible, then risk shall be transferred to the purchaser from the date that the items are ready for shipment.
3. The supplier shall be entitled to insure the delivery item at the purchaser‘s expense.
VIII. Ban on Export
The goods delivered by us may only be directly or indirectly exported to other countries following our written consent. We shall be entitled to compensation in the event that this regulation is breached.
IX. Retention of title
1. We shall reserve the title to the goods delivered until all of the claims to which we are entitled and which still arise from the business relationship have been settled in full, irrespective of the legal grounds
2. Our customers may resell the goods in the ordinary course of business, subject to the ban on export. This right shall be forfeited in the event that payments are discontinued. The customer hereby assigns to us all of the claims against its own customers to which it is entitled from the resale including all ancillary rights as collateral, without requiring any further special declarations. The assigned claims shall serve as collateral for all claims in accordance with point 1. The customer will forward payments made for the assigned claim to the supplier without delay up to the amount of the collateralised claim. The customer shall be entitled to collect the assigned claims unless we have revoked this authorisation. The authorisation to collect claims shall also cease without an express revocation if the customer discontinues its payments, in the event of default of payment, if insolvency proceedings are opened, in the event of a protest of a bill or if there are justifiable indications of over-indebtedness or pending insolvency. Following a prior warning subject to compliance with a reasonable period the supplier may also disclose the collateral assignment, exercise the assigned claims and demand disclosure of the collateral assignment by the customer to the latter‘s own customers.
3. Following a demand from us the customer must inform us without delay in writing of whom it has sold the goods to and of the claims to which it is entitled from the resale, and issue a publicly certified document regarding the assignment of the claims to us at its own expense.
4. The customer shall be prohibited from pledging or assigning the goods as collateral while the retention of title remains in place. The customer must inform the supplier without delay in the event of seizure, attachment or other disposals or interventions from third parties. The customer must also agree with its own customers that the latter shall only acquire title once this payment has been made.
5. In the event of a breach of obligation by the customer, in particular of default of payment, the supplier shall be entitled without setting a deadline to demand that the delivery item is returned or to withdraw from the contract after setting a deadline if required; the customer shall be under an obligation to return the goods. The demand for return of the delivery item shall not represent a declaration of withdrawal by the supplier unless an express
declaration is made in this regard.
X. Complaints and notifications of defects
1. The purchaser shall only be entitled to claims for defects if it has duly fulfilled its existing obligations to examine the goods and provide notification of defects in accordance with section 377 of the German Commercial Code (HGB) and has provided written notification of the defect.
2. There shall be no claims for defects in the event of a negligible deviation from the agreed condition of the goods or if there is merely a negligible impairment in usability. In the event of obvious defects the notification of the defects shall be provided in good time if it is provided by the purchaser to the supplier in writing within 10 days from the delivery; sending of the notification within this periodshall suffice for the purposes of meeting this deadline. Notification of defects which arise subsequently must be provided without delay. Defects must be described in as much written detail as the purchaser is able to provide.
3. Claims under warranty shall be excluded if complaints or notifications of defects are not communicated in time. If notification is provided in time then we shall be under an obligation to provide a subsequent delivery or to provide performance under warranty in accordance with section XI.
4. the purchaser provides notification of a defect which does not exist in accordance with the supplier‘s own examination, and if the purchaser was aware that the defect did not exist when it provided the notification or was mistaken in this regard as a result of negligence, then the purchaser must compensate the supplier for the damage suffered as a result of this. The purchaser shall be entitled to provide evidence that the defect for which notification was provided does indeed exist. Within the scope of the preceding provisions the supplier shall be entitled in particular to demand compensation from the purchaser for expenditure incurred by the supplier, for instance in examining the item or for the repairs demanded by the purchaser.
XI. Warranty claims and liability for defects in the delivery
1. We provide a warranty for our goods in accordance with applicable German law. The warranty provides for the repair or replacement through our facilities or specifically authorised repair workshops, of all products shown to be defective during the period of the warranty due to verifiable material or manufacturing defects, provided that they are sent with postage paid. Our customer service will decide on the sending process for stationary machinery.
2. The supplier shall be entitled in all cases to choose between rectification of the defect or a subsequent delivery. The purchaser must submit its demand for supplementary performance in writing. The supplier must be granted a period of 12 weeks for the supplementary performance. If the goods delivered are to be repaired then the repair shall only be deemed to have failed following the second unsuccessful attempt. If the supplementary performance does fail then the purchaser shall be entitled at its discretion to a reduction in the price or to withdraw from the contract. The statutory cases regarding the ability to dispense with setting a period remain unaffected. Application of sections 478, 479 BGB (right of recourse of the business owner) remains unaffected.
3. Excluded from any liability for defects are all parts subject to natural wear and tear, as well as the consequences resulting from excessive strain, improper handling and failure to comply with the operating instructions. We shall refuse any obligations if the item has been interfered with by the purchaser or a third party; with our products this also applies in particular to any use of tools or accessories from other manufacturers.
4. The supplier shall be liable in accordance with the statutory regulations in instances of wilful intent or gross negligence on the part of the supplier or a representative or vicarious agent as well as in the event of an injury to life, limb or health caused culpably. In all other respects the supplier shall only be liable in accordance with the German Product Liability Act, on account of a culpable breach of essential contractual obligations or if the seller has maliciously concealed the defect or has accepted a guarantee for a particular condition of the delivery item. However, the claim for compensation for the breach of essential contractual obligations shall be limited to foreseeable damage which is typical for the contract, unless one of the other exceptional cases stated in sentence 1 or sentence 2 of this sub-section (1) applies at the same time. a. The regulations in the preceding sub-section (1) apply to all claims for compensation (in particular for compensation in addition to performance and compensation in lieu of performance), irrespective of the legal grounds, in particular for defects, breach of obligations from the contractual relationship or based on tort. They also apply to claims for compensation for futile expenditure. However, liability for default is based on no. VI. 5. of these terms and conditions. b. There is no change in the burden of proof to the detriment of the purchaser associated with the preceding regulations.
5. Products manufactured by us are subject to the provisions of the EC Machinery Directives. The basic principles of nos. 1 and 2 of the „Joint Declaration“ of the confederation of industry and commerce from 25/04/78 are an integral component of these terms and conditions.
XII. Limitation
1. The limitation period for claims and rights arising from defects in the delivery shall be one year, irrespective of the legal grounds for these. However, this will not apply in instances of section 479 sub-section 1 BGB (right of recourse of the business owner). The exceptional case in the preceding sentence 2 is subject to a limitation period of three years.
2. The limitation period in accordance with sub-section 1 shall also apply to all claims for compensation against the supplier which are associated with the defect – irrespective of the legal basis for the claim.
3. However, the limitation periods under sub-sections 1 and 2 apply subject to the following:
a) The limitation periods shall not generally apply in instances of wilful intent or malicious concealment of a defect or if the supplier has accepted a guarantee for a particular condition of the delivery item.
b) The limitation periods shall also not apply to claims for compensation where there is a grossly negligent breach of obligation, in the event of a culpable breach of essential contractual obligations – not consisting in the delivery of a defective item or the provision of a defective service, to cases of an injury to life, limb or health caused culpably or for claims in accordance with the German Product Liability Act. The limitation periods for claims for compensation shall also apply to compensation for futile expenditure.
4. The limitation period for all claims shall begin from the point of delivery, or from the point of acceptance in the case of services.
5. Unless expressly agreed otherwise, the statutory regulations on the start of the period of limitation, suspension of the running of a period, suspension of the period itself and any restart of periods remain unaffected.
6. The preceding regulations shall apply accordingly to claims for compensation which are not associated with a defect; sub-section 1 sentence 1 shall apply to the period of limitation.
7. There is no change in the burden of proof to the detriment of the purchaser associated with the preceding regulations.
XIII. Purchaser‘s right to withdraw from the contract
The purchaser may withdraw from the contract if the entire performance is impossible for us prior to the transfer of risk. If there is default of performance in accordance with no. VI. on our part and the purchaser grants us a reasonable subsequent period which is not complied with, then the purchaser shall be entitled to withdraw from the contract. If there is default of acceptance based on culpability of the purchaser, then it shall remain under an obligation to provide counter-performance. If there is a conclusive failure in attempts to provide repairs or replacement deliveries in accordance with no. X. then the purchaser may at its discretion demand a reduction in the purchase price or rescission of the contract.
XIV. Supplier‘s right to withdraw the contract
1. If an ordered item cannot be delivered because we have not been supplied by oursupplier with no culpability on our part and despite their contractual obligation then we shall be entitled to withdraw from the contract. In this event we shall notify the purchaser without delay of the fact that the goods ordered are no longer available and will reimburse without delay any payments that have already been made.
2. The contract will be amended accordingly if unforeseen events occur for the purposes of no. VI., provided that these change the economic significance or the content of the performance or affect our company and in the event that impossibility of performance occurs at a subsequent point. If this is not reasonable from an economic point of view than we shall be entitled to withdraw from the contract in whole or in part.
XV. Place of jurisdiction
1. If the purchaser is a registered trader, a legal entity under public law or a special fund under public law, then any action for all disputes arising from the contractual relationship shall be brought before a court which has jurisdiction for the supplier‘s head office or branch executing the delivery. The supplier may also bring an action at the purchaser‘s head office.
2. German law applies exclusively to the contractual relationships.
XVI. Severability clause
1. In the event that individual provisions in this contract are ineffective or unenforceable or become ineffective or unenforceable after formation of the contract then this will not affect the effective nature of the remainder of the contract.
2. In this event the parties shall undertake to replace the invalid, ineffective or impossible part of the contract with a valid, effective and satisfiable provision which comes closest in content to the parties’ original intention.