Valid in respect of:
- a person acting in pursuit of a commercial or independent professional activity at the time of formation of the contract (entrepreneur);
- legal persons under public law or a federal asset.
I. General
- All goods and services of the firm KIST + ESCHERICH GmbH (referred to hereinafter as KIST + ESCHERICH) are based on these terms and conditions and any separate contractual agreements. Any dissenting terms and conditions of purchase of the customer shall not form part of the contract even if an order is accepted. In the absence of any agreement to the contrary, a contract shall come about upon our written confirmation of order.
- We reserve all title and copyright to specimens, cost proposals, drawings and similar information of a tangible and intangible nature, including in electronic form; such information may not be made accessible to third parties. KIST + ESCHERICH undertakes to make information and documents designated by the customer as confidential available to third parties only with the consent of the customer.
II. Price and payment
- In the absence of any agreement to the contrary, prices shall be ex works including loading in the factory, but exclusive of packaging. Prices are subject to value-added tax payable at the statutory rate.
- In the absence of any agreement to the contrary, payment shall be made as follows:
- 2/3 payment in advance upon receipt of the confirmation of order;
- 1/3 upon delivery or passage of risk. Both these payments shall be made in net terms within 10 days of receipt of an invoice.
- Invoices for repair services or servicing work and for deliveries of spare parts shall be due for payment in full immediately.
- Cheques will only be accepted on account of performance and shall not be considered payment until credited without reservation.
- The customer shall only have the right to withhold payments or set payments off against counterclaims if his counterclaims are undisputed or have been declared final.
- From the time of default we may levy default interest at eight percentage points p.a. above the respective base rate. This does not affect our right to demand interest at 5% p.a. above the respective base rate, from the due date in the case of a commercial act between both parties.
- Unless otherwise specified by the confirmation of order, the prices of the price list valid at the time of formation of the contract shall apply. Should there be more than 4 months between the date of formation and the agreed delivery and should demonstrable price increases have occurred that increase KIST + ESCHERICH's cost prices by more than 5%, we shall be entitled to demand a corresponding adjustment in the price.
- If we ship the delivery item, shipment shall be at the expense of the customer.
- If we have accepted erection and assembly of the delivery item in addition to delivery, delivery will be to the place of erection, also at the expense of the customer. In addition to the agreed consideration, the customer shall also bear all necessary incidental expenses, e.g. travel expenses and field allowance for the assembly personnel.
- If we perform training services, our price list for training that is valid at the time of performance shall apply unless otherwise indicated in the confirmation of order.
- We will charge a reduced quantity supplement of € 25 if the value of the order is less than € 100.
III. Time of delivery, delay in delivery
- The time of delivery or acceptance date will derive from the agreements between the parties. A time of delivery or acceptance date shall only be considered approximate, so that a delay of up to 6 weeks shall still be considered timely. Our observance thereof shall presuppose that all commercial and technical issues between the parties hereto have been clarified and that the customer has met all obligations incumbent upon him, e.g. provision of the necessary official certification or approvals or performance of an advance payment and, where appropriate, the preparations for erection and assembly. If this is not the case, the time of delivery will be extended accordingly. This shall not apply if KIST + ESCHERICH is responsible for the delay. If shipment or the acceptance of the delivery item is delayed for reasons within the control of the customer, he will be charged the costs arising from the delay, beginning one month after notification of readiness for shipment or acceptance.
- If non-observance of the time of delivery or acceptance date is due to force majeure, labour disputes, interruptions of business for us or our contractors or other events outside our responsibility which prevent us, without our culpability, from supplying the delivery item or making it ready for acceptance on the agreed date, the dates and periods shall be postponed by the duration of the interruptions caused by these circumstances. KIST + ESCHERICH will inform the customer as soon as possible of the beginning and end of such circumstances. We shall be entitled to rescind the contract if we are permanently unable to supply due to failures of supplies from contractors.
- In the case that KIST + ESCHERICH is unable to perform or late in performing an obligation relating to a partial delivery, this shall only entitle the customer to exercise rights in relation to the partial performance unless he has a justified interest in rejecting the rest of the delivery. If that is not the case, the customer shall remain bound to accept and to pay for partial deliveries that are not impaired in accordance with the contractual arrangements.
- The delivery period shall be considered observed if the delivery item has left our works by the time it expires or readiness for shipment or, if agreed, readiness for acceptance, has been notified.
- In the event of delay in delivery, KIST + ESCHERICH will be liable in accordance with statutory provisions, whereby the right of self-performance or through procurement from third parties is restricted in accordance with VII.2.
IV. Passage of risk, acceptance
- The risk of accidental loss or deterioration of the delivery item shall pass to the customer when the delivery item has been brought for shipment or has been collected. If KIST + ESCHERICH commissions the transport company, we hereby assign to the customer all claims against the haulage firm in connection with deficient or improper delivery. We shall only be answerable for having acted carefully in the selection of the haulage firm.
- If the shipment or the acceptance is delayed or does not happen at all due to circumstances which are not KIST + ESCHERICH responsibility, the risk will be transferred to the buyer, commencing the date of notification of readiness for shipment or take-over to the buyer.
- If reasonable, partial delivery is acceptable for the customer.
- If an acceptance inspection is to take place, we may demand that the customer accepts the delivery immediately after completion of the assembly or erection of the delivery item. If this does not happen within 14 days of notification of the readiness for shipment or acceptance, acceptance shall be considered to have taken place. Acceptance shall likewise be considered to have taken place if the delivery item is used. The customer may not refuse to accept or take delivery of the item on account of a minor fault.
- As soon as KIST + ESCHERICH has confirmed an order, the customer may only rescind the contract with our express written consent.
V. Reservation of title
We deliver only based on the reservation of property rights, as described in detail in the following. This is valid as well for future deliveries, even if we do not always refer to this specifically.
- KIST + ESCHERICH reserves against the buyer right of property of the article of sale until all outstanding receivables resulting out of this business relationship. Including future claims of the seller caused by contracts concluded simultaneously or that have been settled later. We are entitled to take back the article of sale if the buyer acts contrary to the contract.
- The buyer is obligated, to handle the article of sale with care until passage of title. He is particularly obligated insure the article, covering value as new, at his own expense against theft, breakage, fire loss, water- or other damages. If maintenance-and service works have to be performed, the buyer has to arrange this duly at own cost. Until the passage of title has taken place, the buyer is obliged to inform us immediately in writing if the delivered item has been detrained or otherwise exposed to third party intervention. As far as the third party is not able to reimburse us for judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the buyer is liable for the resulting loss caused for us.
- The buyer is entitled to resale of the goods, which are subject to retention of title, in correct business connections. All claims of the buyer resulting from resale of the goods, which are subject to retention of title, the buyer assigns already at the time of contract to us in the full amount of the final invoice amount which agreed upon with us (including VAT). This assignment of a claim is valid irrespectively if the article of sale is being resold without or after processing. The buyer remains entitled to the collection of debts even after the assignment. Our authorization to collect the claim ourselves will remain untouched by this. However, we will not collect the claim, as long as the buyer discharges his payment obligations resulting from the collected revenues, is not late in payment and especially no application for opening of insolvency proceedings or stoppage of payment is existent.
- The handling and processing or alteration of the item of sale by the buyer is always effected in our name on behalf of us. In this case the expectant right of the buyer on the item of sale continues in the altered item. If the item of sale is being processed with other items, not belonging to us, we acquire the co-ownership of the new item in relation to the objective value of our item to the other processed items at the time of processing. The same is applicable for intermixture. If the intermixture is effected in a way, that the item of the buyer has to be considered the main item, it shall be deemed to be agreed that the buyer assigns pro-rata co property to us and keeps the so resulting sole or joint ownership property for us in safe custody. For covering our claims against the buyer, the buyer assigns even such claims to us which accrue to him through the connection of the goods, which are subject to retention of title, with a piece of real estate against a third party, we accept this assignment of a claim already now.
- We commit ourselves, to release the securities due to us upon demand by the buyer, as far as their value exceeds the claims to be secured by more than 20%.
- If and insofar as the reservation of title exists, the customer may neither pledge the delivery item nor assign it as security. He shall notify KIST + ESCHERICH immediately in the case of attachments and of seizure or other disposition by third parties.
- Should the customer act in breach of contract, particularly in the case of default in payment, we shall be entitled to recover the delivery item after due notice and the customer shall be bound to surrender same.
- We may only demand recovery of the delivery item on account of the reservation of title if we have rescinded the contract.
- Petition for the institution of insolvency proceedings against the customer shall entitle us to rescind the contract and to demand immediate recovery of the delivery item.
VI. Material defects and deficiency in title
Subject to Section VII, KIST + ESCHERICH warrants the delivery against material defects and deficiency in title as follows to the exclusion of further claims:
Material defects:
Delivery is effected subject to our standard specifications or the agreed specifications. Characteristics of the goods which the customer can expect according to public statements of the supplier or those of his vicarious agents, in particular in catalogues, brochures etc., in advertising or in the labelling of the goods, or on the basis of commercial practice, will only be considered an agreed quality if KIST + ESCHERICH has indicated so in writing in a binding offer or confirmation of order. Guarantees shall only be binding if KIST + ESCHERICH indicates them as such in writing and has detailed its obligations under the guarantee. The supply of specimens shall not constitute any agreement as to quality unless this is expressly agreed with the buyer in writing. The decision on the suitability of the delivery item for a concrete purpose shall be the responsibility of the user. Information and details provided within the scope of advice by us shall not release the customer from the duty to carry out his own tests or inspections. The customer shall examine whether the delivery item is of the contractually agreed quality. If this examination is omitted or is not carried out in the due extent or if identifiable defects including wrong deliveries are not notified in writing immediately after delivery/assembly, the delivery item shall be considered approved. Non-identifiable defects shall be considered approved if they are not notified to us in writing immediately after discovery, but no later than 12 months after delivery of the goods.
If the delivery of used machines is agreed, liability for material defects is excluded in full subject to Number VII.2. Used machines will be delivered with the accessories still present in the condition in which they are found at the time of formation of the contract. Any liability for obvious and hidden defects is also excluded if the machine had not previously been inspected by the customer.
- All parts which prove to be defective as a result of a circumstance existing before the passage of risk shall at our option be improved or replaced free of charge. We shall be notified in writing of the discovery of any such defects. Replaced parts shall become our property.
- The customer shall, after notifying KIST + ESCHERICH, give us the necessary time and opportunity to carry out all improvements and substitute deliveries we consider necessary; otherwise we shall be released from liability for the consequences arising therefrom. Only in urgent cases of danger for operational reliability or to avert disproportionately greater damage, in which case KIST + ESCHERICH shall be informed immediately, shall the customer have the right to rectify the defect himself or have it rectified by third parties and to demand from KIST + ESCHERICH reimbursement of the necessary expenses.
- Of the costs arising from improvement or substitute delivery, KIST + ESCHERICH will, if the complaint proves to be justified, reimburse the costs of the spare part, including the costs of shipment.
- The customer shall have the right to rescind the contract within the scope of statutory regulations if KIST + ESCHERICH – after consideration of the exceptions allowed by law – allows a reasonable period of time set for the improvement or substitute delivery on account of a material defect to pass without result. If the defect is only minor, the customer shall only have a right to a reduction in the contract price. The right to a reduction in the contract price otherwise remains excluded. Further claims are regulated in Section VII.2 of these terms and conditions.
- No warranty is offered for the following cases in particular: unsuitable or inexpert use, deficient assembly or start-up by the customer or third parties, natural wear and tear, deficient or negligent treatment, improper maintenance, unsuitable operating resources, deficient construction work, unsuitable foundations and harmful environmental influences, unless these are the responsibility of KIST + ESCHERICH.
- If the customer or a third party effects improper improvement, the supplier shall not be liable for the consequences arising therefrom. The same shall apply for modifications to the delivery item made without our prior consent.
Deficiencies in title:
- Delivery to the destination country is to the best of our knowledge and conscience free of industrial property rights or copyrights of third parties (hereinafter "property rights"). If a third party brings justified claims against the customer on account of a breach of property rights through goods supplied by us and used in accordance with contract, KIST + ESCHERICH will be answerable to the customer as follows: KIST + ESCHERICH will at its option and at its expense either bring about a right of use for the relevant delivery, modify it so that the property right is not breached or replace the delivery with perfect goods. If KIST + ESCHERICH is unable to do so under reasonable conditions, the customer shall accrue the statutory rights of rescission or reduction in price. The duty to pay compensation shall be governed by law with the limits of liability set out in Number VII.
- Subject to Section VII.2, the duties of the supplier laid down in Section VI.7 are final for the case of a breach of property rights or copyright. They shall only exist if
- the customer informs KIST + ESCHERICH immediately of the breaches of property rights or copyright asserted by a third party;
- the customer supports KIST + ESCHERICH to a reasonable extent in our defense against asserted claims or enables us to carry out the modification measures in accordance with Section VI.7;
- KIST + ESCHERICH retains the right to take all defensive action, including settlements out of court;
- the deficiency in title is not founded on an instruction of the customer; and
- the breach was not caused by the customer modifying the delivery item himself or using it in a way other than as permitted in the contract.
VII. Liability
- If the customer is unable to use the delivery item according to contract through our fault as a result of the omission or deficient execution of proposals and advice given before or after formation of the contract or through a breach of other secondary duties under the contract, in particular instructions for operation and maintenance of the delivery item, the regulations of Sections VI and VII.2 shall apply to the exclusion of further claims of the customer.
- KIST + ESCHERICH will only be liable for damage not caused to the delivery item itself, on whatever legal grounds, in the case of
- intent;
- gross negligence on the part of the proprietor / institutions or managerial employees;
- culpable injury, loss of life or damage to health;
- deficiencies which KIST + ESCHERICH maliciously failed to disclose or whose absence we guaranteed;
- defects in the delivery item if liability is mandatory under product liability laws for personal injury or material damage to items of private use. In the case of a culpable breach of substantive contractual duties, KIST + ESCHERICH shall also be liable for the gross negligence of non-managerial staff and in the case of slight negligence, limited in the latter case to the damage reasonably foreseeable for a typical contract of this kind.
- Other claims are excluded.
VIII. Limitation period
All claims of the customer, on whatever legal grounds, shall become time-barred in 12 months.
Claims to compensation under Section VII.2.a – e shall be governed by statutory periods. These shall also apply for deficiencies of a structure or for delivery items which were used for a structure in accordance with their usual method of use and which caused the deficiency of the structure.
IX. Use of software
If software is included in delivery, the customer is granted a non-exclusive right to use the supplied software, including its documentation. It is provided for use on the intended delivery item. Use of the software on more than one system is prohibited. The customer may only duplicate, revise or translate the software to the extent allowed by law (§§ 69 a ff. German Copyright Law). The customer undertakes not to remove manufacturer's details, in particular copyright notices, or to amend same without our prior express consent.
All other rights to the software and the documentation, including copies, remain with KIST + ESCHERICH or the software supplier. No sub-licenses may be granted.
If the software is not produced by us, the license conditions of the relevant software manufacturer shall apply.
In the case that the software is defective, KIST + ESCHERICH assigns to the customer all claims accruing to it against the software manufacturer. The customer must initially assert defects in the software against the software manufacturer. KIST + ESCHERICH will only be liable in the subsidiary if claims cannot be pursued against the manufacturer. No duty to supply software updates or upgrades shall exist.
X. Applicable law, jurisdiction, validity
- All legal relations between KIST + ESCHERICH and the customer shall be governed solely by the laws of the Federal Republic of Germany prevailing for legal relations between domestic parties.
- The court competent for the registered office of the supplier shall have jurisdiction. However, KIST + ESCHERICH shall be entitled to pursue legal proceedings at the head office of the customer.
- These terms and conditions of supply shall apply for business relations from January 2008 and shall remain in force until such time as they are replaced by a new version.
XI. Data protection
KIST + ESCHERICH saves and processes personal details of the customer required for the transaction of business. We are also entitled to have these details processed and stored by third parties within the scope of a contract.
XII. Severability
Should any provision of this Agreement be or become invalid, ineffective or unenforceable, the remaining provisions of this Agreement shall be valid. The Parties agree to replace the invalid, ineffective or unenforceable provision by a valid, effective and enforceable provision which economically best meets the intention of the Parties. The same shall apply in case of an omission.
Munich, 01.01.2018
revised May 2020