GENERAL TERMS AND CONDITIONS OF BUSINESS
1.1. Where mention is made of our General Terms and Conditions prior to the formation of contractual relations, said Terms and Conditions shall apply upon formation of contract. Conflicting and/or complementary general terms and conditions of the Ordering Party shall only bind us if we have explicitly acknowledged them in written form.
1.2. Until accepted, our offers shall be revocable.
1.3. Acceptance of an order shall be in written form (confirmation) or by delivery.
1.4. Business-related data of the Customer shall be treated in accordance with the provisions of the (German) Federal Data Protection Act.
2.1. At our own discretion, we shall retain the right to implement changes that result from normal technical development (Section 315 BGB – German Civil Code), even after the order has been placed.
2.2. Information relating to services, consumption data, weights etc., shall be approximate; precise data shall be declared as such.
3.1. Delivery dates and deadlines shall basically not be binding. Binding dates and deadlines for delivery shall be explicitly specified as such in writing in the contract. Compliance with a binding delivery date shall be deemed given when the goods have left our works on time or, if pickup by the Customer has been arranged, as from the time of notification that the consignment is ready for despatch.
3.2. Without reciprocal set-off, the Buyer shall be able to cancel the contract if there has been no compliance with the delivery deadline and the final deadline has already been extended.
3.3. If it proves impossible, either for us or our suppliers, to comply with the delivery deadline owing to circumstances of force majeure, including strike, lock-out, unavoidable difficulties with the procurement of materials, unforeseen operational breakdown and other events for which we are not responsible, the deadline shall be extended appropriately. Each of the Contracting Parties shall be entitled to cancel the contract if a delay lasts for more than three months.
3.4. Should the Purchaser delay in inspecting and accepting the consignment, we shall charge warehouse fees after one month of notifying readiness for despatch. Should a deadline set for acceptance expire, we shall be entitled to dispose otherwise of the goods and to supply the Purchaser with equivalent goods subject to a new deadline. In that case, it shall be possible to charge any price increases that might since have become applicable.
4. 4. Prices, Despatch, Liability for Damages during Transportation
4.1. Our prices shall be ex-works without packaging and without assembly and subject to the addition of value added tax.
4.2. Specific requests of the Purchaser (e.g. delivery to an address other than that of the Purchaser, accelerated form of despatch, special packaging, appointment of a certain carrier) shall be met as far as possible. The Purchaser shall bear any extra costs thus incurred.
4.3. The risk shall pass to the Purchaser, irrespective of the transportation costs agreed upon, the moment the goods are handed over to the carrier or upon handover.
5.1. Unless otherwise arranged, our invoices shall be paid inside 8 days of the invoice date at 2% discount or inside 30 days without any deduction. No discount shall be deducted for services.
5.2. Payments shall be deemed made as from the moment we are able to dispose freely of the amount and, as applicable, shall be assigned to the longest outstanding due debt. In cases of default on payment, a penalty interest of 3% in excess of the baseline rate of the European Central Bank may be asserted as well as other charges. It shall be up to the Ordering Party to provide evidence that less damage has been suffered.
5.3. The Purchaser shall only be able to set-off accepted counterclaims or those that have been established by declaratory judgement.
5.4. Cheques or bills shall only be accepted on account of performance subject to the customary provisos. Discount and collection charges shall be paid by the Purchaser.
5.5. In the event payments cease or cheques and exchanges are not honoured, our claims to payment shall become due for payment immediately, even if the payment deadline has been extended.
5.6. Our claims shall be due immediately in the event an application is filed for insolvency proceedings on the assets of the Ordering Party.
6. Right to cancel the contract
7.1. We shall retain ownership of our goods until all claims to which we are entitled from the business relations with the Purchaser have been satisfied in full. The Purchaser shall be only be entitled to resell the goods to which we retain title (goods subject to retention of title) in return for payment by cash during the course of regular business transactions, otherwise only by transfer of the retention of title, but not for any other disposals, particularly not to pledge or assign as security. We shall be able to revoke this right if the Ordering Party defaults on its commitment to payment. Instalment sales of the Ordering Party that are financed by third parties shall not be deemed to be sales transacted in the course of regular business in return for payment by cash.
7.2. The Purchaser herewith now assigns us its future claims to the purchase price from the resale of the goods that are subject to the retention of title and undertakes to inform us of the name of the third-party debtor and the amount due, if we so request. The Ordering Party shall be authorized to collect the assigned claims to payment. We shall be able to revoke this authorization in the event of default on payment. Costs we incur from the collection of the assigned claims to the purchase price shall be borne by the Ordering Party. If the total of all securities provided us by the Ordering Party exceeds the secured claims from the business relations by more than 20%, we shall release an appropriate part of the security interests at the request of the Ordering Party.
7.3. If the Purchaser combines the delivered items with real estate or with goods and chattels, the Purchaser herewith now assigns us all claims to which it is entitled from said combination together with all the ancillary rights. The assignment shall be restricted to the amount of the respective claim to payment that corresponds to the purchase price of the goods delivered by us to the Purchaser plus a mark-up of 10% on this purchase price.
7.4. We shall be immediately informed of any loss, damage, pledge or other third-party intervention in respect of the goods to which we retain title, or of a pledge of the assigned claims to payment. In the event the goods to which we retain title are pledged, the Purchaser shall provide us immediately with the garnishment record and an affidavit to the effect that the pledged items are identical with those we delivered. In the event the assigned claims to payment are pledged, the attachment order and transfer of the garnished claim shall be sent to us immediately. The Ordering Party shall bear all costs necessitated to cancel the pledge of the goods to which title is retained and the assigned claims and to procure the purchased item again, unless these costs can be collected from third parties.
7.5. Should the Purchaser default on payment, the Purchaser undertakes at our request to surrender the goods to which title has been retained if an extended set period of time has passed fruitlessly. In setting the price for the goods we take back, account shall be taken of a loss in value between delivery of the goods and taking them back again.
8. Complaints an notice of defetcs
8.1. Complaints about distinct defects or the incorrect or incomplete delivery of goods shall be notified to us immediately in writing, at the latest 3 days after the goods are received. Compliance with said deadline shall be deemed given if the notification is despatched on schedule.
8.2 Other defects shall be notified to us in writing immediately upon discovery.
8.3. The goods shall be deemed approved if complaints or objections are not lodged on schedule.
9.1. For damages or defects that can be proven to be attributable to an error at works, we shall guarantee for a period of 24 months after delivery, unless other time intervals have been explicitly specified in the order. This assurance shall not affect the Purchaser's own guarantee towards its own customers.
9.2. In the event a warranted property is lacking or if the item is defective, we undertake to eliminate the defect in an appropriate period of time free of charge, either by way of rectification or by replacement, as we choose. Should the rectification or replacement not prove successful, the Ordering Party shall be able to choose between reducing the payment (reduction) and reversing the contract (annulment). For rectification or replacement services, the guarantee period shall be 6 months. Nevertheless it shall at least run up until the lapse of the original guarantee period.
9.3. Claims to compensation of the Ordering Party, irrespective of their legal reason, in particular those derived from a positive violation of contractual duties, a breach of duties in contract negotiations and from unlawful actions shall be ruled out. This shall not apply insofar as liability is mandatory under the Product Liability Act or in cases of wilful intent, gross negligence, the lack of warranted properties or the breach of major contractual duties. Compensation for the breach of major contractual duties, however, shall be restricted to the foreseeable damages that are typical for the contract, except in cases of wilful intent or gross negligence. There is no connection between changes in the onus of proof to the detriment of the Ordering Party and the aforementioned rulings.
9.4. We retain the right to reject any claim to guarantee from the end consumer if the error in question is attributable to an incompetent connection or the non-professional installation of the goods, or if our operating and maintenance instructions were not carefully heeded.
9.5. No guarantee shall be granted for damages incurred from external chemical, electrochemical or electrical impacts and hence not triggered by the delivered item itself.
9.6. Our duty to guarantee shall expire if repairs were carried out or intervention took place on the part of persons who were not authorized to do so by us, or if our equipment was fitted with additional or accessory parts that are not aligned to our equipment.
9.7. If the Ordering Party supplies re-sellers, it undertakes to point out to them our provisions of guarantee.
10. Place of Fulfilment, Place of Jurisdiction / Concluding Provision
10.1. Place of fulfilment for all contractual duties shall be the registered office of our company.
10.2. Place of jurisdiction for all disputes derived from contractual relations shall be the court of law at the main seat of KIRSCH if the Ordering Party is a businessperson, a legal entity under public law or a special estate under public law.
10.3. German law shall apply even if the Customer is a foreigner or has its seat of business in another country. Application of the uniform law on the international sale of goods of the UN Convention on Contracts for the International Sale of Goods shall be ruled out.
