of the company Kälte-Rudi GmbH & Co. KG (Supplier) (January 2020)
Preamble: Unless agreed otherwise in writing between the contracting parties, the following terms and conditions will apply to all contracts, supplies and services, including abroad. The Customer’s General Terms of Business are hereby explicitly rejected in their entirety.
Contract conclusion: Unless agreed otherwise, all quotations will be non-binding. An order will only become binding if and when it has been confirmed in writing. Supplements, amendments or ancillary agreements made telegraphically, by telephone, fax, email or verbally, must be confirmed in writing by the Supplier.
Prices, terms of delivery and payment:
The price lists that are valid when the order is confirmed will apply. Prices will be net of VAT at the statutory rate valid at the time.
In principle, delivery dates will not be binding and will be subject to timely delivery to the Supplier.
Prices will apply ex works and exclusive of packaging. The Customer will bear the packaging costs. The Customer must insure the goods at its own expense.
The Supplier expressly reserves the right to deliver at any time only against an agreed deposit, payment in advance or cash on delivery, especially in the case of deliveries abroad. Payments by acceptances, bills of exchange or cheques are not accepted and have no effect on the fulfilment of the contract. The Customer will bear the bank costs and other ancillary costs of the monetary transaction.
In the case of customised products and deliveries abroad, half of the agreed charge will fall due in advance when the order confirmation is sent to the Supplier.
The place of performance for payment of the purchase price and any ancillary claims will be the Supplier’s registered office in D-75210 Keltern.
In the event of default in payment, protested bill of exchange or cheque, or indications that the Customer is experiencing payment difficulties or is not creditworthy, the Supplier will be entitled to withhold its service, demand payment in advance or adequate collateral, or else to cancel the contract and to claim damages. In the event of default in payment, the Supplier will also be entitled to elect either to make deliveries only subject to payment in advance or settlement of all or specific outstanding and due invoices.
A monetary debt on the part of the Customer will incur interest at 12% per annum, or at least 9 percentage points per annum above the ECB base rate, from the point of default.
A Customer who is a trader may only withhold payment of the purchase price on the basis of counterclaims that have been acknowledged, are awaiting a decision or have been legally established. The Customer may only offset claims against counterclaims that have been acknowledged, are awaiting a decision or have been legally established.
Deliveries will take place at the Customer's risk from the point of handover of the goods to the carrier. The Customer will be bear the costs of unloading and bringing the goods into its premises.
The Supplier's representatives or agents will not be entitled to accept payments. Payments made in this way will have no discharging effect.
Reservation of title: The Supplier will retain title to the goods until the purchase price has been paid in full, and until other claims originating from earlier deliveries have been settled in full. If a current account is in place, the Supplier will retain title to the goods until all claims have been cleared. If title should be lost as a result of installation, further processing, mixing, combination or resale, title will be replaced by a compensation claim of the same value with respect to the newly manufactured product. If the goods are sold on or the newly manufactured product is sold, the Supplier will be due an equivalent monetary share in the purchase price. Therefore, the Customer hereby assigns its purchase price claim with immediate effect, up to the amount of the Supplier's claim. The latter hereby accepts that assignment. The Customer may resell the goods during the normal course of its business and before default arises, provided it agrees with the Purchaser a reservation of title that safeguards the Supplier's rights. In this case, it must declare the resale to the Supplier and submit its assignment agreement with the Purchaser to it upon request. For dispositions beyond this, such as pledges, transfers of title by way of security and the like, the Customer will require prior written consent. At the Supplier’s request, the Customer must provide it immediately with all necessary information relating to the stocks of the goods that are subject to the Supplier's reservation of title and the claims that have been assigned to it. The Customer must notify the Supplier immediately of any seizures of the goods that are subject to a reservation of title, and must send it the record of attachment. The same will apply in the case of other infringements of the Supplier's rights that are procured or brought about by third parties.
Other reservations of the right of cancellation: If the Supplier is unable to perform the contract by receiving timely delivery itself or as a result of force majeure, it may fully or partially cancel the contract. The same will apply in the event of operational problems caused by external circumstances beyond its control, such as war and mobilisation, inadequate supply of raw materials, breakdown of machinery, blockage of lorry and rail traffic, strike, natural disasters and the like. If the goods ordered cannot be delivered as a result, the Customer will be informed immediately. Both parties will then be entitled to cancel the contract within 14 working days, having previously set an extension or sent notification. Considerations already paid will be refunded to the Customer immediately. The Supplier may also cancel the contract at any time for cause. Cause will exist in particular in the event of repeated default in payment by the Customer, the institution of enforcement measures against it or the receipt of precise and reliable negative information regarding the Customer's financial position. The Customer must pay compensation for benefits accruing or use of the goods, in the form of a lump sum of 5% of the net purchase price per calendar month or part thereof. The Customer may present proof that the benefits or the use and enjoyment were significantly less than the lump sum, while the Supplier may present proof that they were significantly higher than it. The Supplier will also be due a lump sum for expenses in the amount of €5,000.00, plus VAT at the statutory rate, for cancellation of the contract. The Customer may present proof that the precise expenses were significantly less than the lump sum, while the Supplier may present proof that they were significantly higher than it. This will apply without prejudice to the statutory provisions relating to contract cancellation.
Inspection and notification requirements:
The Customer will be obliged to inspect every delivery, immediately upon receipt, for external damage, incorrect deliveries or incompleteness, and to notify such defects in writing no later than the end of the 5th working day following their receipt. If it fails to do so, the delivery will be deemed to have been approved as free of defects. The Supplier will be entitled to examine an alleged defect. If the Customer denies it the opportunity to conduct an examination, the Supplier will be released from its warranty obligation.
In the case of damage during transportation, the Customer will submit to the carrier's provisions that are valid at the time.
If the Customer is a trader, it must notify hidden defects in the goods in writing within 5 working days after they are discovered.
Warranty / liability for material defects / replacement delivery:
The warranty towards a Customer who is a trader will be limited to 12 months from delivery. The limitation will not apply for warranty claims relating to injury to life, limb or health. In the case of acknowledged warranty cases, the Supplier may choose between replacement delivery and repair. If the Customer is a trader, repair or replacement delivery will take place in the event of defects in the goods or incorrect delivery, provided the goods are returned in full, at the Customer's expense and with a written statement of the complaints, within 2 weeks of their receipt by the Customer or of discovery of the hidden defects, or provided the Supplier is given the opportunity to examine them and they are in fact found to be defective or incorrectly delivered. Their timely dispatch will equate to adherence to the deadline. If the repair or replacement delivery fails, this will not affect the rights to a reduction in price, replacement delivery or cancellation of the order.
If the Customer alleges an incorrect delivery, it will only be entitled to a replacement delivery provided the order was placed in writing.
The Customer will not be released from its liability simply by making a warranty claim, although it will retain the agreed rights of retention and setoff.
The Customer will undertake, both on its own behalf and that of third parties, not to interfere with the goods, either by making changes, installing and removing parts, undertaking or attempting repairs, or also by removing or altering the identification plates, numbers and similar designations that have been affixed by the Supplier. The Customer will carry sole liability for the consequences of faulty operation or installation, failure to observe the Supplier's technical and material requirements, in particular as regards the prescribed operating or cooling water pressure, the operating or cooling water temperature and the mains connection, inadequate or defective ventilation, inappropriate handling, in particular failure to observe or disregard of the operating instructions and machine descriptions, to the extent that a defect or damage is based thereon. In principle, the warranty will not cover any damage caused by packaging, transportation, loading and unloading, assembly and disassembly, relocation or storage. Nor will the warranty cover cosmetic blemishes, minor damage to paintwork or damage that does not impair the contractually required purpose and operation of the goods. The Customer will be responsible for the professional preparation of water and power connections that is to take place before delivery in accordance with the Supplier’s installation instructions.
A Customer who is a trader will in any event be responsible for shipping expenses and travel time, and also for the travel time and travel costs of a fitter. The Supplier will keep parts replaced under warranty or during replacement delivery. No compensation will be paid for replacement parts. The Customer hereby transfers title back to the Supplier in advance; the Supplier hereby also accepts the transfer of title in advance.
Any guarantee that may have been agreed will lapse upon transfer by the Customer of title or possession to the item delivered to third parties, provided the Supplier has not given written approval to the transfer of the guarantee commitment.
Warranty claims may be assigned with the consent of the contracting parties.
Exclusion of liability: The Supplier cannot be held contractually or statutorily liable for minor negligence on the part of its vicarious agents, provided no material contractual obligations are breached. The same will apply to consequential losses or indirect losses arising out of the supply of defective goods or during repair work. The exclusion of liability will not apply for compensation claims based on injury to life, limb or health. For the rest, liability will be limited to predictable losses that are typical for business of the type to which the contract relates, which can be expected during the normal course of events. Both contracting parties may provide proof that no loss, or only minor loss, has arisen in an individual case, or also that a higher loss has arisen, although the typical loss and the actual loss may not be cumulated.
Other matters: The Customer accepts that the preparation of water and power connections by the Supplier's competent and authorised agents will take place before delivery in accordance with the Supplier’s installation instructions.
Place of jurisdiction and choice of law:
If the Customer is a merchant, a legal entity under public law or a special fund under public law, if it has no general place of jurisdiction in Germany, if its place of residence or habitual place of abode is unknown when the legal case is filed, or if its place of residence or habitual place of abode is moved out of the area of validity of the law after conclusion of the contract, the Parties agree that Pforzheim will be the exclusive place of jurisdiction for all disputes arising out of the contractual relationship.
The law of the Federal Republic of Germany, to the exclusion of international private law and the UN Convention on the International Sale of Goods, is agreed as the governing law with respect to all legal relations that exist between the parties, in particular for the national and international competence of courts.