GTC

1.1.

These General Terms and Conditions of Business for transactions with entrepreneurs (“Terms and Conditions”) apply exclusively to national and international business transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law, and special funds under public law (“Customer”).

1.2.

These Terms and Conditions apply to all agreements between Kaul Fördertechnik GmbH, or companies affiliated with it within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG), (“KFT”) and the Customer, even if they are not expressly mentioned again in subsequent agreements.

1.3.

Conflicting, additional, or deviating general terms and conditions of the Customer shall not become part of the agreement unless KFT has expressly agreed to their validity in writing. These Terms and Conditions shall also apply if KFT, being aware of conflicting or deviating general terms and conditions, performs a delivery or service to the Customer without reservation.

1.4.

Notwithstanding the foregoing, individual agreements made in a particular case that deviate from these Terms and Conditions shall take precedence over these Terms and Conditions. Subject to proof to the contrary, a written agreement shall be decisive as to the content of such agreements.

1.5.

Rights to which KFT is entitled under statutory provisions in addition to these Terms and Conditions shall remain unaffected.

2.1.

Offers and cost estimates from KFT are always subject to change and non-binding, unless expressly designated as a binding offer. If an offer from KFT is designated as binding and no period of validity is specified, KFT shall be bound by it for four (4) weeks.

2.2.

Unless otherwise agreed, KFT’s first offer to the Customer is free of charge, unless it is an offer involving extensive technical specifications. An offer involves extensive technical specifications if its preparation requires more than eight (8) working hours of KFT’s time, of which KFT will inform the Customer before preparing the offer. The preparation of further offers, as well as offers involving extensive technical specifications, shall be at the Customer’s expense.

2.3.

KFT may accept orders from the Customer within fourteen (14) days. Within this period, the order constitutes an offer binding on the Customer within the meaning of Section 145 of the German Civil Code (BGB).

2.4.

The agreement between KFT and the Customer comes into existence when KFT expressly confirms the Customer’s order by an order confirmation in text form, or when KFT has rendered the service that is the subject matter of the agreement. To the extent the order confirmation contains obvious errors, clerical mistakes, or miscalculations, it shall not be binding on KFT in that respect.

2.5.

Silence on the part of KFT in response to offers, orders, requests, or other declarations of the Customer shall under no circumstances constitute acceptance of the Customer’s offer.

2.6.

The quality owed in respect of the service shall be conclusively agreed in the order and the order confirmation. Clause 10 of these Terms and Conditions shall apply.

3.1.

Unless expressly agreed otherwise, delivery shall be made EXW (Ex Works) Incoterms® 2020 from KFT’s manufacturing facility specified in the order confirmation. At the Customer’s request, risk, and expense, the goods will be shipped to another destination within the delivery area, DAP Incoterms® 2020, in which case KFT shall be entitled to determine the mode of shipment (carrier, freight forwarder, shipping route, packaging) itself. Unless otherwise agreed between the parties, KFT shall not insure the goods.

3.2.

Packaging of the goods going beyond the delivery pursuant to Clause 3.1 shall only be provided at the Customer’s request and expense.

3.3.

Agreements on delivery periods require written form. Delivery periods specified by KFT are non-binding estimates unless expressly designated as binding.

3.4.

A delivery period shall commence upon dispatch of the order confirmation by KFT, but not before the complete provision of any (technical) information, documents, permits, and approvals to be procured by the Customer, receipt of any agreed advance payment, and the timely and proper performance of any other cooperation obligations of the Customer.

3.5.

Agreed delivery periods are deemed observed if KFT delivers before expiry of the delivery period pursuant to Clause 3.1 or if the Customer refuses acceptance or has announced its refusal to accept.

3.6.

If non-compliance with delivery periods is due to force majeure or other obstacles beyond KFT’s control, Clause 6 shall apply.

3.7.

If the Customer or a third party engaged by the Customer is in default with respect to cooperation obligations, supplies to be provided, or the provision of information to be rendered by it, or does not render these in accordance with the agreement, KFT shall not be responsible for any resulting delays in performance.

3.8.

The Customer is only entitled to withdraw from the agreement due to a delay in delivery, or, in the case of a work performance, to terminate it, on condition that the delay is attributable to KFT.

3.9.

The Customer must accept delivered goods, without prejudice to its claims for defects, even if they exhibit immaterial defects. The Customer is also obliged to accept the goods provided even if they were delivered insignificantly earlier than agreed.

3.10.

KFT is entitled to make partial deliveries, provided this is reasonable for the Customer.

3.11.

To the extent and insofar as acceptance is required, the statutory provisions shall apply, subject to the proviso that the Customer must carry out the acceptance within 12 working days of being requested to do so by KFT following completion of the service to be accepted. The Customer may only refuse acceptance in the case of material defects.

4.1.

The risk of accidental loss or accidental deterioration of the goods passes to the Customer as soon as KFT delivers the goods at the place of delivery pursuant to Clause 3.1 or as soon as the Customer is in default of acceptance.

4.2.

This shall also apply if partial deliveries are made or if, in an individual case and in deviation from Clause 3.1, TME has assumed the transport costs.

5.1.

If the Customer does not accept the goods offered to it in time (“Default of Acceptance”), KFT is entitled, after the unsuccessful expiry of a reasonable grace period, to invoice the goods, to withdraw from the agreement, and, if the Customer has acted culpably, to demand damages in lieu of performance. In addition, KFT is entitled to demand from the Customer reimbursement of all additional costs incurred as a result of the Customer’s default of acceptance, e.g. for the storage and preservation of the goods.

5.2.

If the Customer falls into default of acceptance, KFT may claim compensation for the resulting damage as follows: 0.1% of the net price of the delivery in default of acceptance per day of default, up to a maximum total of 5% of the net price of the delivery in default of acceptance. The parties reserve the right to assert further damages and to prove that no damage, or a lesser amount of damage, has occurred.

6.1.

If KFT is prevented from fulfilling its contractual obligations, in particular the timely delivery of the goods, by force majeure, KFT shall be released from the relevant performance obligation for the duration of the impediment and a reasonable start-up period, without being obliged to pay damages to the Customer. The same applies if and to the extent that the fulfillment of KFT’s obligations is rendered unreasonably difficult or temporarily impossible by other unforeseeable circumstances beyond KFT’s control, in particular by governmental measures (irrespective of their lawfulness), governmental orders, measures, or restrictions due to energy shortages, lack of means of transport, power outages, failure of telecommunications connections, strikes, lockouts, and other industrial action, as well as material operational disruptions.

6.2.

Force majeure means all unusual, unforeseeable events beyond the will and control of the parties, such as, in particular, natural disasters, terrorist attacks, political unrest, epidemics, governmental measures, blockades, sabotage, and embargoes.

6.3.

Clause 6.1 applies accordingly to delays not attributable to KFT that result from the unavailability of the service due to KFT’s subcontractors and suppliers failing to supply KFT in good time, even though KFT has entered into a congruent covering transaction.

6.4.

KFT will promptly inform the Customer of the occurrence of an operational disruption or a force majeure event.

6.5.

The parties are entitled to withdraw from the agreement or, if a contract for work exists, to terminate it, if an impediment to performance within the meaning of this Clause 6 continues for more than three (3) months and, as a result of the impediment, performance of the agreement is no longer of interest to the respective party, or performance of the obligations of the party affected by the impediment becomes impossible pursuant to Section 275 of the German Civil Code (BGB).

7.1.

The Customer must properly perform the cooperation obligations specified in the offer; in particular, the Customer must procure the necessary supplies at its own expense.

7.2.

If installation or a work performance by KFT has been agreed, the Customer must

a)

ensure that general order is maintained at the installation site and coordinate the cooperation of the various contractors;

b)

have available the necessary permits and approvals under public law;

c)

grant KFT unobstructed access to the installation site;

d)

provide KFT, free of charge, for use or shared use, with the necessary storage and work areas at the installation site, existing access roads and siding tracks, and existing water and power connections; and

e)

adequately secure the installation site against theft, weather conditions, and other risks.

8.1.

The agreed price in euros as set out in the order confirmation, plus value added tax, shall apply and, unless otherwise agreed in writing, is understood to be EXW Incoterms® 2020 (manufacturing facility as specified in the order confirmation).

8.2.

Statutory value added tax is not included in the price and, to the extent applicable, will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.

8.3.

If delivery takes place more than four (4) months after conclusion of the agreement, each party is entitled to demand a price adjustment, provided and to the extent that it demonstrates to the other party that the circumstances material to the calculation of the prices have, cumulatively, increased or decreased by more than 10% since the commencement of the agreement. Material factors for the calculation of prices include, in particular, personnel, material, and energy costs, freight, exchange rate, and credit costs, as well as taxes, fees, and other public charges, and the manufacturer’s list prices.

8.4.

If the other party objects to the requested price adjustment, or does not agree to it within a period of two (2) weeks of receipt of the price adjustment request, the parties shall promptly enter into negotiations with the aim of reaching agreement on the future price level. If the parties fail to reach agreement on the future price level — for whatever reason — within a period of four (4) weeks from the objection of the other party or the expiry of the consent period, whichever occurs first, the party requesting the price adjustment may, within two (2) weeks, withdraw from the agreement, or, in the case of a contract for work, terminate it, subject to a notice period of two (2) weeks.

9.1.

Unless otherwise agreed, payment shall be made without deduction within 15 calendar days of receipt of the invoice by the Customer. A cash discount may only be deducted where separately agreed in writing.

9.2.

If the Customer is in default of payment, KFT is entitled to demand default interest at a rate of nine (9) percentage points above the base rate pursuant to Section 247 of the German Civil Code (BGB). The right to assert further damages remains reserved.

9.3.

Counterclaims of the Customer shall only entitle it to set-off and to assert a right of retention if such counterclaims are undisputed, have been recognized, or have been finally and bindingly established by a court. The Customer may only assert a right of retention if its counterclaim arises from the same contractual relationship.

9.4.

KFT is entitled to perform outstanding deliveries or services only against advance payment or the provision of security if, after conclusion of the agreement, circumstances become known that are capable of materially reducing the Customer’s capacity to perform or creditworthiness, and by which payment of KFT’s outstanding claims by the Customer under the respective contractual relationship is jeopardized. The same applies accordingly if the Customer refuses or fails to pay KFT’s outstanding claims and there are no undisputed or finally and bindingly established objections to KFT’s claims.

10.1.

The quality owed in respect of the goods shall be conclusively agreed in the order and the order confirmation.

10.2.

Illustrations, drawings, weight and dimension specifications, and other descriptions of the delivery or service from the catalog or other documents belonging to the offer are only approximately authoritative unless expressly designated as binding by written or electronic confirmation. They do not constitute an agreement or guarantee of a corresponding quality of the delivery or service. Where the target quality of the delivery or service has been bindingly agreed with the Customer, changes by KFT shall remain permissible to the extent they are made due to mandatory legal provisions and are reasonable for the Customer. Design and shape changes to the goods remain reserved, provided the changes are not material and are reasonable for the Customer. In the event that such changes are not reasonable, the Customer has a right to withdraw from the agreement, or, in the case of a work performance, to terminate it. Further claims of the Customer are excluded.

10.3.

Characteristics or intended uses excluded in the product description, the order, or the order confirmation are not part of the subjective or objective requirements for the goods. This also applies to accessories and instructions.

10.4.

KFT is not obliged to check the Customer’s documents, information, and records for completeness and accuracy. KFT shall not be responsible for defects resulting from the incompleteness or inaccuracy of the Customer’s documents, information, and records.

11.1.

KFT warrants the quality within the meaning of Clause 10 and the statutory provisions, unless otherwise provided below. KFT does not assume any guarantee for the intended purpose or the quality of the services, and this requires express agreement.

11.2.

In the case of deliveries and work deliveries, the Customer’s rights for defects presuppose that it has properly complied with its statutory duty to inspect the goods and give notice of defects (Sections 377, 381(2) of the German Commercial Code (HGB)).

11.3.

The Customer must give notice of defects in writing. The written notice of defects to KFT must describe the defect complained of. In the case of defects in the goods or the service, KFT is primarily entitled, at its own discretion, either to remedy the defect free of charge (“repair”) or to deliver goods free of defects (“replacement delivery”).

11.4.

If the goods are not located at the place of delivery pursuant to Clause 3.1, the Customer shall bear all additional costs incurred by KFT in remedying the defects, unless the relocation to another place corresponds to the contractual use of the goods.

11.5.

No rights for defects exist

a)

in the case of natural wear and tear;

b)

in the case of defects arising after the transfer of risk as a result of improper handling (for example, deviating from the operating instructions through the use of unsuitable operating materials), improper storage or maintenance, or excessive stress or use;

c)

in the case of defects arising due to force majeure, particular external influences not assumed under the agreement, or due to use of the goods outside the use assumed under the agreement or the customary use;

d)

in the cases covered by Section 442 of the German Civil Code (BGB).

11.6.

KFT shall not be liable for defects resulting from the Customer having demanded processing or a choice of material deviating from KFT’s specifications.

12.1.

KFT shall be liable without limitation — irrespective of the legal grounds — in the event of the breach of a guarantee, fraudulent concealment of a defect, or injury to life, body, or health. The same applies to intent and gross negligence on the part of its executive bodies and senior employees. Liability for simple vicarious agents (Section 278 of the German Civil Code (BGB)) is excluded to the extent permitted by law. The provisions of the Product Liability Act remain unaffected.

12.2.

For slight negligence, KFT shall, subject to Clause 12.1, only be liable to the extent that material contractual obligations are affected, the fulfillment of which is a prerequisite for the proper performance of the agreement in the first place and on the observance of which the contracting party may regularly rely.

12.3.

In the event of a slightly negligent breach pursuant to Clause 12.2, default, and impossibility, KFT’s liability shall be limited to the typical, foreseeable damage. In such case, indirect damage and consequential damage resulting from defects shall only be recoverable to the extent that such damage is typically to be expected in the case of intended use of the goods.

12.4.

For non-compliance with a delivery period, KFT’s liability, subject to the exceptions set out in Clauses 12.1 and 12.2, shall be limited, in respect of any damage incurred by the Customer due to the delay, to a maximum of five (5) % of the agreed net purchase price. The parties reserve the right to assert further damages and to prove that no damage, or a lesser amount of damage, has occurred.

12.5.

In all other respects, liability on the part of KFT is excluded.

13.1.

The limitation period for claims of the Customer for subsequent performance, price reduction, termination, remedy by substitute performance, and withdrawal due to defects shall be twelve (12) months. This also applies to contractual and non-contractual claims for damages of the Customer that are based on a defect in the goods, unless the application of the statutory limitation periods would lead to an earlier limitation in an individual case.

13.2.

The limitation period pursuant to Clause 13.1 shall commence upon delivery of the goods or, where acceptance is required, from the date of acceptance. The limitation period shall also commence if the Customer falls into default of acceptance.

13.3.

The limitation period shall not recommence upon subsequent performance. Unreserved subsequent performance by KFT does not constitute an acknowledgment on the part of KFT of any warranty claims of the Customer.

13.4.

The limitation period for claims for damages due to the breach of other contractual obligations through slight negligence shall be one (1) year from the end of the year in which the claim arose and the Customer obtained knowledge, or should have obtained knowledge without gross negligence, of the circumstances giving rise to the claim and of the identity of the obligor.

13.5.

Notwithstanding the provisions of this Clause 13, the statutory limitation period shall apply if and to the extent that one of the cases referred to in Clauses 12.1 and 12.2 applies, or the goods are used for a structure and a defect in the structure results therefrom.

14.1.

All deliveries by KFT are made subject to retention of title. The delivered goods shall remain the property of KFT until full payment of the agreed purchase price by the Customer (“Goods Subject to Retention of Title”).

14.2.

In addition, KFT shall remain the owner of the delivered goods until full payment of all secured claims arising from the business relationship between the parties.

14.3.

The Customer is obliged to treat the Goods Subject to Retention of Title with care for the duration of the retention of title. In particular, the Customer must carry out, at its own expense, all necessary inspection and maintenance work on the Goods Subject to Retention of Title properly and in a timely manner.

14.4.

The Customer is obliged to insure the goods, at its own expense, adequately at replacement value against damage by fire, water, and theft. The Customer hereby already assigns to KFT all claims for compensation arising under this insurance. KFT hereby accepts this assignment. Should an assignment not be permissible, the Customer hereby irrevocably instructs its insurer to make any payments only to KFT. Further claims of KFT shall remain unaffected. The Customer must, upon request, provide KFT with evidence that the insurance has been taken out.

14.5.

The Customer is not entitled to pledge the Goods Subject to Retention of Title to third parties, to assign them to third parties by way of security, or to make any other disposition jeopardizing KFT’s ownership. The Customer must immediately notify the purchaser in writing, provide all necessary information, inform the third party of KFT’s ownership rights, and cooperate with KFT’s measures to protect the Goods Subject to Retention of Title, if and to the extent that the Goods Subject to Retention of Title owned by KFT are seized, confiscated, or otherwise exposed to access by third parties. To the extent the third party is not able to reimburse KFT for the judicial and extrajudicial costs of an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the Customer shall be liable for the resulting shortfall incurred by KFT.

14.6.

The Customer is revocably entitled to resell the Goods Subject to Retention of Title in the ordinary course of business. The Customer hereby already assigns to KFT the claims arising from the resale of the Goods Subject to Retention of Title in the amount of the invoice amount, including value added tax and any transport costs, together with all ancillary rights. KFT hereby already accepts this assignment. If the Goods Subject to Retention of Title are resold together with other goods not supplied by KFT, the claim arising from the resale shall be assigned in proportion to the value of the Goods Subject to Retention of Title (final invoice amount including value added tax) to the other goods sold. Should an assignment not be permissible, the Customer hereby irrevocably instructs the third-party debtor to make any payments only to KFT.

14.7.

The Customer is revocably authorized to collect, in its own name, on a fiduciary basis for KFT, the claims assigned to KFT. KFT’s right to collect these claims itself remains unaffected. KFT shall not itself assert the claims and shall not revoke the collection authorization for as long as the Customer properly meets its payment obligations, is not in default of payment, does not suspend its payments, and no application is made for the opening of insolvency proceedings over the Customer’s assets.

14.8.

Any processing, working, mixing, combining, or reshaping of the Goods Subject to Retention of Title by the Customer shall always be carried out in the name of and on behalf of KFT. The Customer’s existing expectant right shall continue to exist. If the Goods Subject to Retention of Title are processed with other items not owned by KFT, KFT shall acquire co-ownership of the new item in proportion to the objective value of the Goods Subject to Retention of Title to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing occurs in such a way that the Goods Subject to Retention of Title are to be regarded as the principal item, it is agreed that the Customer transfers to KFT proportionate co-ownership and holds the resulting sole ownership or co-ownership in safekeeping for KFT. If the Customer acquires a claim for compensation against a third party as a result of the combination of the goods with a plot of land, the Customer hereby already assigns this claim to KFT. KFT hereby already accepts this assignment.

14.9.

At the Customer’s request, KFT is obliged to release existing security to the extent that the realizable value of the security, taking into account customary banking valuation discounts, exceeds KFT’s claims from the business relationship with the Customer by more than 10%. The selection of the security to be released is at KFT’s discretion.

15.1.

In the event of the Customer’s conduct in breach of the agreement, in particular in the event of default of payment, KFT is entitled, without prejudice to other contractual and statutory rights, to withdraw from the agreement, or, in the case of work performances, to terminate it, after expiry of a reasonable grace period.

15.2.

Further rights of withdrawal and termination of the parties under the statutory provisions, the agreement, and these Terms and Conditions remain unaffected. In particular, KFT is entitled to withdraw from the agreement, or, in the case of work performances, to terminate it, if the owed service is unavailable for more than three (3) months due to KFT’s subcontractors and suppliers failing to supply KFT in good time, KFT is not responsible for this, and KFT has entered into a congruent covering transaction.

15.3.

After declaring withdrawal or, in the case of work performances, termination, the Customer must immediately grant KFT or its representative access to the items subject to retention of title and surrender them. Following appropriate advance notice, KFT may otherwise realize the Goods Subject to Retention of Title in order to satisfy the due claims against the Customer. The proceeds of realization shall be credited against the Customer’s liabilities, less reasonable costs of realization.

15.4.

Statutory rights and claims are not restricted by the provisions contained in this Clause 15 or elsewhere in these Terms and Conditions.

16.1.

The Customer is obliged to use exclusively for the fulfillment of its obligations, and to treat as strictly confidential for an unlimited period, all information, data, documents, and other resources made accessible to it by KFT or otherwise obtained in this context, including any trade secrets within the meaning of the German Trade Secrets Act (“Confidential Information”), to implement appropriate security measures to protect the Confidential Information, and, in particular, not to make it available to unauthorized third parties. Confidential Information includes, in particular, computer applications, documented workflows, copyrighted works, intellectual property and protective rights, and other know-how of KFT.

16.2.

The obligation set out in Clause 16.1 shall not, however, extend to information that

a)

was already publicly known (i.e. readily accessible to any third party) at the time of its disclosure by KFT, or became publicly known after its disclosure without a breach of confidentiality obligations — in particular those under this Clause 16 — and without any breach of the obligations under the agreement or these Terms and Conditions of Sale, or

b)

was demonstrably already known to the Customer at the time of its disclosure, without breach of any confidentiality obligation, or

c)

must be disclosed by KFT pursuant to an order of a public authority or a statutory obligation.

16.3.

Upon termination of the agreement, the Customer must return, in an orderly manner, all Confidential Information generated in connection with the performance of the service or received from KFT or third parties or otherwise obtained, including any copies made thereof. Should the Confidential Information exist in electronic form, it must be irrevocably deleted after a copy has been handed over. At KFT’s request, in the event of destruction or deletion, the destruction of the Confidential Information must be confirmed in writing.

16.4.

The Customer shall, in an employment-law-permissible scope and for an unlimited period, including for the time after they leave, bind in writing to confidentiality, in accordance with the whole of this Clause 16, all employees and subcontractors involved in the performance of the agreement. Furthermore, the Customer will only disclose the Confidential Information to those employees and subcontractors who need to know it for the performance of the agreement. The Customer expressly declares that it will be liable for any culpable breach by its representatives (in particular employees and subcontractors).

16.5.

The Customer warrants that, in rendering its services, it does not infringe any third-party proprietary rights or copyrights. It shall indemnify KFT against any third-party claims in the event of a corresponding culpable infringement of rights and reimburse KFT for all damages and expenses arising from such claims, including reasonable costs of legal defense.

17.1.

The legal relationships between the Customer and KFT shall be governed by the laws of the Federal Republic of Germany, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

17.2.

The exclusive — including international — place of jurisdiction for all claims arising from the business relationship shall be the registered seat of KFT. KFT is also entitled to bring an action at the Customer’s registered seat or at any other permissible place of jurisdiction.

17.3.

The place of performance for all services of the parties shall be the registered seat of KFT.

18.1.

Should a provision of these Terms and Conditions of Sale, or a provision under any other agreements between the Customer and KFT, be or become wholly or partly invalid, or violate statutory provisions, or become unenforceable for other reasons, the validity of the remaining provisions or agreements shall not be affected thereby. The parties are obliged to replace the invalid or unenforceable provision with a valid one that comes as close as possible to what the parties intended, in economic terms, at the time the agreement was concluded.

18.2.

In the event of any discrepancies between the German version of these Terms and Conditions and a version in another language, the German version shall prevail.