General Terms and Conditions of Sale, Bernd Kussmaul GmbH
The prices specified in long-term delivery contracts are ex works, and exclude crating, packing and packaging.
Title to the goods shall remain vested in the Seller until the purchase price has been paid in full, and all obligations outstanding at the time of delivery or otherwise arising from this contract have been met.
3) Payment terms
1. Payments shall be made net of any charges
2. The Purchaser shall only be entitled to offset any amount owing to the Seller against any counter-claims that are uncontested or legally enforceable.
3. The Seller shall invoice the Purchaser for goods delivered during a calendar month by the 10th day of the following month. Invoiced amounts are payable in full without deduction within two weeks.
4) Delivery times
1. The timing of goods deliveries or services shall be determined by the written statements of both parties. However, in all cases, delivery dates are made without commitment or obligation on the part of the Seller unless the Seller has expressly guaranteed the delivery date in writing.
a) Timely delivery in accordance with agreed dates and times is conditional on the Purchaser providing all required documents and permissions, promptly clarifying and approving design drawings, complying with the agreed terms and conditions of payment and fulfilling any other obligations.
b) If these conditions are not met in a timely manner, the delivery date shall be extended accordingly.
2. If the Seller is unable to deliver by the agreed delivery date due to mobilization, war, riots, industrial action, including strikes and lock-outs, or the occurrence of unforeseeable events, the delivery date shall be delayed accordingly.
a) If the goods or services are not delivered by the agreed delivery date - for reasons other than those identified in sub-clause 2, and the Purchaser can make a prima facie case that it suffered damages arising from the delay, the Purchaser is entitled to claim compensation. This shall amount to 0.5 to five (5) percent of the value of the relevant elements of the delivery which prevented certain items from being manufactured and put into operation.
b) The Purchaser may claim compensation if the delay caused by the circumstances identified in sub-clause 2 occurs after the original delivery date has passed.
c) The Purchaser is not entitled to claim compensation exceeding the limit of five (5) percent specified in sub-clause 2a) for any delayed deliveries, including, without limitation, where the Seller is granted an extension.
d) This does not apply to the extent that liability cannot be excluded in cases of willful misconduct or gross negligence.
e) This does not affect the Purchaser's right to terminate the contract if the Seller has failed to deliver, despite having been granted an extension.
3. If shipment is delayed at the request of the Purchaser, the Purchaser can be charged a storage fee. This fee shall amount to 0.5 percent of the value of the goods to be delivered for each full month, commencing one month after the goods are ready to be shipped. The total sum is limited to 5 percent of the value unless it can be proven that the Seller incurred greater costs.
5) Transfer of risk
1. The risk of loss or deterioration of the delivered goods, including, without limitation, when it has been agreed that the Seller shall pay the costs of delivery, shall pass to the Purchaser as follows:
a) When the crated or packaged goods in their final form have been dispatched or collected for shipment. The Seller shall exercise all due care and consideration when crating and packing the goods, which shall be shipped at the discretion of the Seller. On request, at the Purchaser's cost, the shipment shall be insured against breakage, damage in transit and fire.
b) If dispatch or shipment is delayed at the request of, or otherwise caused by, the Purchaser, the risk passes to the Purchaser from the start of the delay. However, the Seller is obliged to insure the goods as requested by the Purchaser, at the Purchaser's cost.
6) Initial receipt of delivery
The Purchaser is obliged to initially receive all goods delivered or collected, notwithstanding any immaterial objections it may have. The Seller is entitled to deliver goods or carry out services in part.
7) Quality, warranties
1. All goods delivered shall be of merchantable quality. The quality should accord with the plans and specifications of the Purchaser. The Seller shall perform all necessary quality assurance.
2. The Seller is liable for defects, including (without limitation) omissions, as follows:
a) The Seller undertakes to repair or at its own discretion replace free of charge all defective goods or services within 12 months, irrespective of service life. This shall date from the day when risk passes to the Purchaser, and applies only to defects present before the passing of risk. This applies in particular, without limitation, in the event of defective design, materials or manufacture that renders the goods unusable or substantially hinders their use. The Seller shall inform the Purchaser of any defects immediately and in writing.
b) The Purchaser shall fulfill all its contractual obligations, in particular, without limitation, those relating to payment. The Purchaser may only withhold payment if its claim of defects is upheld and found to be beyond all reasonable doubt.
c) The Purchaser shall give the Seller a reasonable period of time to rectify any defects. If the Purchaser does not do so, the Seller is released from its obligation.
d) If the Seller does not rectify the defects within a reasonable period of additional time granted by the Purchaser, the latter may request that the contract be terminated or the price reduced.
e) The Purchaser's entitlement to rectification of defects expires 12 months after notice of defects is served. If the Seller and Purchaser are unable to reach agreement within this time, the parties may agree in writing to extend the limitation period.
f) The Purchaser is not liable for damage incurred after the passing of risk, caused by fair wear and tear, incorrect, excessive or negligent use, or exposure to chemical or physical influences not contemplated by the contract.
g) There shall be three (3) months' warranty on improvements and six (6) months' warranty on replacements. These warranties shall apply until the original warranty for the goods has expired.
h) The specified warranty periods shall apply save to the extent that the law requires longer warranty periods.
i) The Purchaser is not entitled to make any further claims against the Seller and its agents, in particular, without limitation, in terms of damages not directly incurred to the goods. This does not apply to the extent that liability cannot be excluded for willful misconduct, gross negligence, or the absence or omission of warranted properties.
j) The Seller's liability as per sub-clause 2 applies to claims made by the Purchaser in respect of its right to repair or replacement, (improvement, amendment or additional delivery) or compensation, arising from representations or advice provided within the scope of the contract or the breach of duties related to the contract.
8) Impossibility, rectification
1. If the delivery of the goods or services becomes impossible for the Seller or Purchaser, relevant German law applies, subject to the following conditions:
a) If the impossibility is the fault of the Seller, the Purchaser is entitled to claim compensation for damages. However, the Purchaser's claim is limited to ten (10) percent of the value of the delivered goods, which cannot be put into operation due to the impossibility.
b) The Purchaser is not entitled to make claims exceeding the specified limit of ten percent, unless the principle of good faith requires otherwise. To the extent that this is not reasonable from an economic perspective, the Seller is entitled to terminate the contract. If the Seller wishes to exercise this right, it is obliged to form the Purchaser promptly after discovering the extent of the payment, including when, without limitation, an extension of the delivery date has been agreed with the Purchaser.
9) Exclusion of liability
The Seller shall not be liable for any claims for compensation made by the Purchaser with regard to positive breach of contract, breach of duties during the contract negotiations or unauthorized conduct. This does not apply to the extent that liability cannot be excluded in cases of willful misconduct or gross negligence by the Seller and/or its agents. This limitation of liability also applies to the Purchaser.
10) Term of the contract
1. A separate, yet to be concluded long-term delivery contract shall come into force on the first day of the calendar month following signature by the parties. From this point on, 12 calendar months represent a year for the purposes of the contract.
2. The contract shall be concluded for the term of one year. If it is not terminated half a year before its expiry, the contract shall automatically be extended by one year; in the event of such an extension, the quantity to be delivered shall be the same as the previous year, unless the parties have agreed otherwise.
11) Proper law
The venue for any and all disputes arising out of or in relation to this contract shall be the courts of the place of business of the Seller or its subsidiaries, at its sole discretion.
The contract shall be governed by German law.
Should any provision of this contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the contract. In this event, the parties shall agree to replace the invalid or unenforceable provision with a valid and enforceable provision that reflects the intent and spirit of the original provision as closely as possible.
The official language of these General Terms and Conditions of Sale is German. This translation is provided as a courtesy only.