1.1These Terms and Conditions are, without exception, applicable to all deliveries, performances and offers from Kaul Fördertechnik GmbH (in the following referred to as „KFT“). By placing the order these Terms and Conditions are acknowledged and accepted by the customer.
1.2 If the customer refers to his Terms and Conditions within a letter of conformation, KFT hereby objects to those Terms and Conditions.
1.3 Changes to these Terms and Conditions are only applicable if KFT confirms such changes in writing.
2. Offer and Conclusion of contract
2.1 Any offer made by KFT is valid for a period of two months, if not otherwise declared in writing by KFT. In general only the first offer is free of charge. Offers including more extensive technical specifications will only be provided against reimbursement of costs. An offer including more extensive technical specifications is usually assumed, if its drafting takes more than eight working-hours.
2.2 Any performances or calculations are made according to prices announced at the date of shipment. Significant changes in costs – e.g. due to a rise in costs of resources or wages – during the contract entitle KFT to adjust the prices accordingly. If in such a case no consensus is met, KFT is entitled to declare the contract avoided.
2.3 If a customer’s order is a binding offer in accordance with § 145 German Civil Code (BGB), it may be accepted within 14 days. To be binding, all agreements between the parties must be put in writing. If an order placed does not meet the written form, the customer bears the risk for any occurring incorrect deliveries.
2.4 Unless provided otherwise by the conformation of order, the risk passes to the customer upon delivery. Delivery takes place according to “Carriage Paid to” (CPT) Incoterms 2010. Insurances against damage that appear during storage or shipment, breakages or due to fire may be agreed upon but are not mandatory. The customer bears the costs of such insurances.
3. Prices and conditions of payment
3.1 All Prices provided by KFT are in Euro excluding value added taxes, packing and costs for customs or insurances. The costs for freight, unloading, customs etc. estimated by KFT, are not binding for KFT. This shall not apply if such costs are agreed upon in writing.
3.2 Unless otherwise agreed upon in writing, payment has to be effected within 15 days after invoice date strictly net. Discount deductions will only be accepted if payment is effected within 10 days after invoice date. Discount agreements are only valid if all payment obligations, be it from this or former orders, are paid in full and the payment agreed upon is paid in cash or is credited to KFT’s account within the time periods mentioned before. Discounts cannot be applied to wages and assembly works.
3.3 In case, after conclusion of the contract but before KFT has performed, a substantial deterioration of the financial circumstances of the customer that jeopardizes KFT’s claim for payment, KFT is entitled to refuse any performance until the payment has been effected in full and regardless of whether the payment is due, or security has been provided ( § 232 BGB).ung des Kaufpreises gefährdet ist, so ist die KFT berechtigt die Leistung zu verweigern, bis der Kaufpreis in voller Höhe und unabhängig von Fälligkeiten beglichen oder Sicherheit für ihn geleistet ist (§ 232 BGB).
3.4 If the dates mentioned in 3.2 are exceeded KFT is entitled to claim the legal default interest of nine percent above the basic rate of interest, without a separate notice of default, e.g. by warning notice, being necessary. The assertion of further damages shall not be excluded hereby.
3.5 The payment is effected, if KFT has unconditional access to the sum due in full. Cheques shall only be accepted in lieu of performance of contract; KFT expressly reserves the right to refuse this type of payment. Cheques are only recognized as payment after they have been honored unconditionally and in full. KFT expressly reserves the right to accept own acceptances or acceptances by third parties. The costs and discount charges are for the customer’s account. KFT will not assume any liability for a timely encashment of prolonged bills.
3.6 The customer shall only have the right to off-set any counterclaims he has where such claims have been found to be legally valid, are uncontested or have been recognized by KFT. In addition to this, the customer shall only be authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
3.7 KFT reserves its right, with contracts of an agreed delivery time of more than four months, to appropriately increase prices according to cost increases relating, to wage agreements and material cost increases. If the increase is more than 5% of the originally agreed price, the customer shall consequently be entitled to terminate the contract. This right can only be exercised if the termination of the contract is declared in writing within one week after the customer is notified of the price increase.
4.1 The agreement on binding delivery dates or deadlines must occur in writing. The beginning of any agreed period of time requires that all technical questions have been clarified.
4.2 If KFT cannot meet the binding deadlines for reasons which KFT is not responsible for (non-availability of goods or services), KFT will immediately notify the customer accordingly and at the same time inform the customer of a new date of delivery. If the service is not available within the new delivery deadline either KFT shall be entitled to terminate the contract in full or in part; KFT will reimburse any consideration already provided by customer without undue delay. The consideration will be reimbursed to the amount in accordance with the extent of the contract’s termination. Deemed as case of non-availability of the service within this meaning is in particular the delayed self-delivery by suppliers of KTF‘s if KFT has concluded a congruent hedging transaction. KFT‘s legal rights of avoidance and termination, as well as the legal regulations regarding contract remuneration upon exclusion of the obligation to perform (e.g. performance and/or subsequent performance become(s) impossible or unreasonable) shall remain unaffected. The customer’s rights of avoidance and termination according to these Terms and Conditions shall remain unaffected.
4.3 The customer is entitled to claims arising from default, if KFT is responsible for the delay. In any case a reminder by the customer is absolutely mandatory. In the event of a breach of duty due to ordinary negligence on the part of KFT or its subcontractors, liability shall be limited to foreseeable and typical contract damages.
Liability of KFT for damages arising from injury to life, body or health as well as in cases of gross negligence or intent shall be hereby unaffected. Liability according to the Produkthaftungsgesetz (German Product Liability Act) shall by unaffected.
4.4 If there is a default of acceptance on the part of the customer or if the customer culpably violates his obligations to cooperate, KFT is entitled, to a lump sum of three percent, to a maximum ten percent, of the consideration agreed upon in the contract as compensation for the additional costs arising, in addition the consideration stipulated by the contract, without prejudice to any further claims. The customer shall, however, be permitted to provide proof that KFT has not incurred any loss whatsoever or that the loss is significantly lower than the lump sum agreed upon in sentence 1.
4.5 Unless agreed upon otherwise, KFT chooses packing, mode of transport and transport route at its own discretion.
5.1 Drawings, sketches, samples and copies of any of those, provided by KFT remain property of KFT. They may therefore not be passed and/or made accessible to third parties without KFT‘s written consent and can be demanded back by KFT at any time.
5.2 Any duplication of such objects shall only be allowed within the limits of what is operationally necessary and shall be subject to copyright.
6. Reservation of proprietary rights
6.1 KFT retains ownership of the delivered goods until all claims with respect to the customer which result from the business relationship, including claims arising in future also from contracts concluded at the same time or at a later date - are settled. This also applies if individual or all claims are included in a current invoice and the balance is determined and acknowledged.
6.2 Until the secured claim is paid in full, the customer may not pledge or transfer the reserved goods or use them as security. The customer must inform KFT in writing immediately if and when third parties exercise rights over the reserved goods.
6.3 The customer shall be entitled to sell the goods in the standard course of business on the condition that all claims from the resale are passed over to KFT as follows: The customer already now assigns existing and arising demands with all ancillary rights developing for it from the resale towards customers or third parties to KFT, regardless of whether the goods subject to retention of title are resold without or subsequent to processing. The customer shall remain authorized for the collection of this claim even after the transfer, as long as he meets his payment obligations arising from this contract or any other obligation towards KFT. This does not affect the entitlement of KFT to collect the amounts due itself. However, KFT agrees not to collect the claims as long as the customer fulfils his payment obligations. Upon request, the customer is obligated to provide KFT with all information necessary for identification of the third party and for assertion of the assigned claims. If the sale takes place together with other goods not owned by KFT or the customer, the claim under the resale shall be deemed assigned in the amount of the value percentage of the reserved goods delivered by KFT. Upon KFT's request the customer is obliged to immediately give all information to KFT and to remit all documents which are necessary for enforcement of KFT's rights in relation to the customer’s contractual partner.
6.4 Processing and manufacturing of the goods under retention of title are carried out for KFT as manufacturer in terms of § 950 BGB, without obligations for KFT. Processed goods are considered as goods under retention of title pursuant to these Terms and Conditions. If the goods under retention of title are mixed inseparably, processed or combined with other objects that are not owned by KFT, KFT shall acquire the co-title to the new object in the ratio of the net invoice value of the goods under retention of title to the net invoice value of the other goods used as of the date of the processing or combination. The subsequently arising co-ownership rights shall be considered goods under retention of title pursuant to these Terms and Conditions. If goods of KFT are combined or inseparably mixed with other goods into one unified object and if the other object is to be seen as the main object, the customer transfers to KFT pro rata co-ownership insofar as the main object belongs to him. In addition, the same conditions apply for the object created by processing, combining and mixing as for the goods subject to retention of title. If KFT loses ownership of its goods delivered, to a third party, the customer is obliged to compensate KFT for any damages incurred.
6.5 In the case of the customer being in breach of contract, especially in the case of default in payment KFT is entitled to avoid the contract after a reasonable time period for fulfilment has been set. In that event, KFT is entitled to retrieve previously delivered goods. The customer is obliged to return them. In the event of attachments or other interventions by third parties, the customer must notify KFT immediately in writing, including a report of attachment and a statutory declaration as to the identity of the attached good.
6.6 Notwithstanding the payment obligation of the customer, KFT is entitled to sell the goods returned at the best and to credit the achieved price of the goods returned to the customer or to credit the contract price of the goods returned - minus depreciation of 25 percent. The original invoice price shall serve as a basis. In general, the amount of impairment loss results from deterioration of material, costs of retrieval and deterioration of the goods due to the return transportation. The customer shall, however, be permitted to provide proof that KFT has not incurred any damages whatsoever or that the damages are significantly lower than the lump sum agreed upon in sentence 1.
7.1 The customer is obliged to unpack and examine the goods delivered immediately after delivery (§ 377 German Commercial Code (HGB)). Reclamations of any kind have to be brought to notice of KFT in written form within 14 days after delivery. In the case of hidden defects this time period shall commence upon discovery of the defect. After expiration of the time period the goods are deemed free of defects and approved.
7.2 Defects will be cured by KFT by rectification or replacement delivery. If subsequent fulfillment fails or if it entails unreasonable costs, the customer remains entitled to reduce the price or avoid the contract. In case of a minor breach of contract, especially in case of a minor defect, the customer is not entitled to avoid the contract.
7.3 KFT offers warranty for its goods in accordance within the respective legal warranty period, as long as the customer uses the goods solely in the usual and intended manner. In this regard, KFT points out that the technical specifications issued by KFT, with respect to the contractual object and intended use only represent the approximate character and type of the goods. Permissible tolerances according to DIN-provisions are no ground for complaints and do not constitute a defect. A defect which KFT is responsible for is not given in case of natural wear and tear or damage caused by improper or unintended use, insufficient storage or if the defect originates from specific use of the goods, that KFT has not been notified of in writing by the time the contract is concluded. The warranty period shall begin with the delivery of the goods.
7.4 Unless agreed upon otherwise, excluded from any warranty are: All conveyor mediums, construction parts or parts subject to wear such as belts, straps, chains etc. as well as all mechanical parts subject to natural wear or fatigue of material; especially if such parts are damaged or worn out due to improper use, incorrect setting, improper maintenance or other disturbances. Unless agreed upon otherwise, the warranty ends with expiry of twelve month after the goods have been delivered.
Place of performance for the customer is KFT’s registered offices (Kalletal / Erder). The rights of the customers arising from the contract are not transferable.
8.1 Unless the following provides otherwise, claims for damages on part of the customer, regardless of their legal ground, are excluded. KFT is not responsible for any damage that did not incur on the goods delivered themselves; in particular, KFT is not to be held responsible for the customer's loss of profit or any other financial damages.
8.2 In the event of a breach of duty due to ordinary negligence on the part of KFT or its subcontractors or agents, liability shall be limited to foreseeable and typical contract damages. For damages arising from injury to life, body or health of the customer or third parties as well as in cases of gross negligence or intent KFT shall be liable according to the statutory provisions. This also applies if the customer, in the event of the absence of a guaranteed attribute or in the case of malicious concealment, seeks compensation instead of performance. Liability according to the Produkthaftungsgesetz (German Product Liability Act) shall by unaffected.
8.3 In the event that KFT‘s liability should be excluded or limited, the same shall also apply to the personal liability of our office employees, factory workforce, staff members, legal representatives and agents.
9. Applicable law/Place of jurisdiction/Partial nullity
9.1 These Terms and Conditions and all legal relations between KFT and the customer will be governed by the law of the Federal Republic of Germany.
9.2 The general terms of service contained in maintenance- and operating manuals are part of the delivery by KFT.
9.3 In so far as the customer is a merchant within the meaning of the German Commercial Code (HGB), legal entity or separate estate under public law, jurisdiction shall be solely that of the district court of Lemgo (Amtsgericht Lemgo) and the regional court of Detmold (Landgericht Detmold), depending on the amount in dispute, for all disputes resulting directly or indirectly from the contractual relationship.
9.4 Should any stipulations of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining stipulations. If any stipulation of these Terms and Conditions is invalid, the according statutory provisions shall replace it.
9.5 In the event of any differences, contradictions or different interpretation of different versions/translations of these Terms and Conditions, the German version shall be decisive.