General Terms and Conditions of Sale, Delivery and Payment (GTC) of Kautz GmbH Stahlbau & Industrie – Montage
1 General, scope of application
(1) All deliveries, services and offers of Kautz GmbH Stahlbau & Industrie – Montage (hereinafter referred to as “Seller”) are exclusively based on these General Terms and Conditions of Sale, Delivery and Payment (hereinafter referred to as “GTC”). These are an integral part of all contracts that the Seller concludes with its contractual partners (hereinafter also referred to as “Customer”) regarding the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
(2) Any terms and conditions of business of the Client or third parties that are different or deviate from our GTC shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the seller refers to a letter that contains or refers to the terms and conditions of the client or a third party, this does not constitute an agreement to the validity of those terms and conditions. These terms and conditions shall also apply if we execute the order without reservation in the knowledge of terms and conditions of the ordering party that conflict with or deviate from our terms and conditions of sale, delivery and payment.
(3) These terms and conditions shall apply exclusively to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law or a special fund under public law.
(4) In the case of contracts for the production of works, the provisions of the VOB/B in its latest version at the time of conclusion of the contract shall apply.
(5) All agreements must be made in writing.
(6) For the purpose of our own credit check, we may retrieve creditworthiness information from SCHUFA Holding AG, 65201 Wiesbaden.
2. Offer and conclusion of contract
(1) All offers of the Seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or contracts within 10 days of receipt.
(2) The legal relationship between the Seller and the Client shall be governed solely by the purchase contract concluded in writing, including these GTC. This contract fully reflects all agreements between the contracting parties on 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 expressly agreed otherwise between the contracting parties in each case.
(3) Additions and amendments to the agreements made, including these GTC, must be in writing to be effective. With the exception of managing directors or authorised signatories, the Seller’s employees are not entitled to make verbal agreements that deviate from the written agreement. Transmission by telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form requirement.
(4) Information provided by the Seller on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) The seller retains ownership or copyright of all offers 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 client. Without the express consent of the Seller, the Client may not make these items available to third parties, either as such or in terms of their content, disclose them, use them himself or have them used by third parties, or reproduce them. At the Seller’s request, he shall return these items in full to the Seller and destroy any copies 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. The storage of electronically provided data for the purpose of usual data backup is excluded from this.
3. Prices and payment, set-off
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are quoted in EUR ex works plus packaging, the statutory value added tax, customs duties for export deliveries as well as fees and other public charges.
(2) We reserve the right, in the case of contracts with an agreed delivery period of more than four months, to change our prices appropriately if, after conclusion of the contract, cost reductions or increases occur, in particular due to material costs, changes in raw material prices, auxiliary material prices, wages and salaries, freight or public charges. We shall provide evidence of the change in these costs upon request.
(3) Invoice amounts are to be paid within 14 days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Payment by cheque is excluded unless agreed separately in individual cases. If the Client fails to make payment when due, interest of 5% p.a. shall be charged on the outstanding amounts from the date of default; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
(5) The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, circumstances become known to the Seller which are likely to substantially reduce the creditworthiness of the Client and as a result of which the payment of the Seller’s outstanding claims by the Client under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardised.
(6) If partial deliveries are agreed, the ordering party shall be obliged to make advance payments on request in the amount of the respective partial performance rendered in accordance with the contract, corresponding to the value of the partial deliveries in relation to the total delivery.
4. Delivery and delivery time, limitation of liability in case of delay
(1) Deliveries shall be made ex works of the Seller.
(2) Deadlines and dates for deliveries and services promised by the Seller are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport, unless expressly stated otherwise by us.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Client – demand from the Client an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Client fails to meet its contractual obligations towards the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, pandemics or epidemics, official measures or the non-delivery, incorrect delivery or late delivery by suppliers despite a congruent hedging transaction concluded by the Seller) for which the Seller is not responsible. Insofar as such events make it significantly more difficult or impossible for the Seller to deliver or perform and the hindrance is not only of temporary duration, 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 deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. The Seller shall inform the Client of this without delay and at the same time notify the Client of the expected new delivery period. Insofar as the Client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to the Seller.
(5) The seller is only entitled to make partial deliveries if
the partial delivery is usable for the customer 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 expenses or costs as a result (unless the Seller agrees to bear these costs).
(6) If the Seller defaults on a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
5. Place of Performance, Dispatch, Packaging, Transfer of Risk, Acceptance
(1) The place of performance for all obligations arising from the contractual relationship shall be Grevenbroich, unless otherwise stipulated. If the Seller is also responsible for installation, the place of performance shall be the place where the installation is to be carried out.
(2) The method of dispatch and the packaging shall be at the discretion of the Seller.
(3) If shipment of the goods has been agreed and the seller has not taken over transport or installation, the risk shall pass to the customer 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. If the dispatch or the handover is delayed due to a circumstance the cause of which lies with the Client, the risk shall pass to the Client from the day on which the delivery item is ready for dispatch and the Seller has notified the Client of this.
(4) Storage costs after the transfer of risk shall be borne by the principal. 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 expired week. The right to claim and prove further or lower storage costs is reserved.
(5) The Seller shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Customer and at the Customer’s expense.
(6) Insofar as acceptance is to take place, the object of sale shall be deemed to have been accepted if
the delivery and, if the Seller is also responsible for assembly/installation (“installation”), the installation have been completed,
the Seller has notified the Customer thereof with reference to the deemed acceptance pursuant to this § 5 (6) and has requested the Customer to accept the goods,
14 working days have elapsed since delivery or installation or the principal has started to use the object of purchase (e.g. has put the delivered system into operation) and in this case 10 working days have elapsed since delivery or installation and
the Client has failed to take delivery within this period for a reason other than a defect notified to the Seller which makes the use of the purchased item impossible or significantly impairs it.
6. Warranty, material defects, used items
(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 of the Principal arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
(2) The delivered items shall be inspected carefully immediately after delivery to the principal or to the third party designated by him. With regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the Client if the Seller does not receive a written notification of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the buyer if the notice of defect is not received by the seller within seven working days of the time at which the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect. At the Seller’s request, a rejected delivery item shall be returned to the Seller carriage paid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favourable 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 the event of material defects in the delivered items, the Seller shall first be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the client may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the fault of the seller, the client may claim damages under the conditions set out in § 8.
(5) In the event of defects in components from other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. In the event of such defects, warranty claims against the Seller shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the statute of limitations for the relevant warranty claims of the Customer against the Seller shall be suspended.
(6) The warranty shall lapse if the Client modifies the delivery item or has it modified by a third party without the Seller’s consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Client shall bear the additional costs of remedying the defect resulting from the modification.
(7) A delivery of used items agreed with the Client in an individual case shall be made to the exclusion of any warranty for material defects.
7. Industrial property rights
(1) The Seller warrants in accordance with this § 7 that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it for the 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 its discretion and at its expense, modify or replace the delivery item in such a way that no third party rights are infringed any more, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Client by concluding a licence agreement with the third party. If the Seller does not succeed in doing so within a reasonable period of time, the Client shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Client shall be subject to the limitations 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 its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Principal or assign them to the Principal. In such cases, claims against the Seller shall only exist in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g. due to insolvency.
8 Liability for damages due to fault / limitation of liability
(1) The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is involved in each case.
(2) The Seller shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in good time, to ensure that it is free from defects of title and material defects which impair its functionality or usability to a more than insignificant extent, as well as advisory, protective and custodial obligations which are intended to enable the Customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Customer’s personnel or to protect the Customer’s property from significant damage.
(3) Insofar as the Seller is liable on the merits for damages in accordance with § 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 it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used for its intended purpose. The above provisions of this paragraph 3 shall not apply in the event of intentional or grossly negligent conduct on the part of members of the Seller’s executive bodies or senior employees.
(4) In the event of liability for simple negligence, the Seller’s obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 500,000.00 per case of damage, even if this 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 organs, legal representatives, employees and other vicarious agents of the Seller.
(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 performance owed by the Seller, 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 Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
9. Retention of Title
(1) The retention of title regulated herein serves to secure all respectively existing current and future claims of the seller against the respective principal from all delivery relationships existing between the contracting parties (including balance claims from a current account relationship limited to this delivery relationship).
(2) The goods delivered by the seller to the client shall remain the property of the seller until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions are hereinafter referred to as “goods subject to retention of title”.
(3) The Client shall store the goods subject to retention of title for the Seller free of charge.
(4) The Customer is entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation (para. 9). Pledges and transfers of ownership by way of security are not permitted.
(5) If the reserved goods are processed by the Customer, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer and that the Seller shall acquire direct ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on the part of the Seller, the Client hereby assigns its future ownership or – in the aforementioned proportion – co-ownership of the newly created item to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the items is to be regarded as the main item, so that the seller or the client acquires sole ownership, the party to whom the main item belongs shall transfer to the other party pro rata co-ownership of the uniform item in the ratio stated in sentence 1.
(6) In the event of resale of the goods subject to retention of title, the customer hereby assigns to the seller by way of security the resulting claim against the purchaser – in the event of co-ownership of the seller in the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorises the Client to collect the claims assigned to the Seller in its own name. The Seller may revoke this collection authorisation only in the event of realisation.
(7) If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the Customer shall immediately draw their attention to the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Client shall be liable to the Seller for these.
(8) The Seller shall release the goods subject to retention of title and the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The choice of the items to be released thereafter shall lie with the seller.
(9) If the seller withdraws from the contract in the event of a breach of contract on the part of the customer – in particular default of payment – the seller is entitled to demand the return of the goods subject to retention of title.
10. Place of jurisdiction, final provisions
(1) If the Client is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from or in connection with the business relationship between the Seller and the Client shall be Grevenbroich or the registered office of the Client, at the Seller’s discretion. However, in such cases Grevenbroich shall be the exclusive place of jurisdiction for actions against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between the Seller and the Client shall be governed exclusively by the laws 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.
(3) Insofar as the respective contract or these GTC contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed 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.