General terms and conditions
of Karl Kaps GmbH & Co. KG, Schulstraße 57, 35614 Asslar
§ 1 Validity
(1) All deliveries, services and offers of Karl Kaps GmbH & Co. KG, Aßlar (hereinafter referred to as “KAPS”) are made exclusively on the basis of these General Terms and Conditions (hereinafter referred to as “GTC”), provided that the client is an entrepreneur, a legal entity under public law or a special fund under public law. These GTC are an integral part of all contracts that KAPS concludes with its contractual partner (hereinafter also referred to as “Client”) regarding the deliveries or services offered by it. They also apply to all future deliveries, services or offers to the client, even if they are not agreed separately again.
(2) Terms and conditions of the client or third parties do not apply, even if KAPS does not separately object to their validity in individual cases.
§ 2 Offer, conclusion of contract and text form
(1) If an order is to be qualified as an offer, we can accept it within 2 weeks.
(2) Amendments and additions to the agreements made, including these GTC, must be in text form (§ 126b BGB) to be effective. With the exception of managing directors or authorized officers, KAPS employees are not authorized to make verbal agreements that deviate from this.
(3) KAPS reserves the ownership or copyright to all documents or objects (offers, cost estimates, drawings, illustrations, calculations, models, etc.) handed over and sent by it. The client may not make these documents and objects accessible to third parties without the express consent of KAPS, disclose them, use them himself or through third parties, or reproduce them.
§ 3 Prices and payment
(1) The prices apply to the agreed listed scope of services and delivery. Additional, supplementary or special services will be charged separately. The prices are in EURO ex works, plus packaging, the statutory value added tax, for export deliveries customs duties as well as fees and other public charges.
(2) The deduction of discount requires an explicit agreement.
(3) Offsetting against counterclaims of the client or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established. This does not apply if the client would be forced by the prohibition of offsetting in the specific delivery or service contract to pay for a defective or unfinished service in full, although he is entitled to counterclaims in the amount of the defect removal costs or completion costs.
(1) Deliveries are made ex works. At the request and expense of the client, the goods will be sent to another destination.
(2) Unless otherwise agreed, KAPS is entitled to determine the type of shipment, in particular transport companies and shipping route, at its reasonable discretion and to pass on any costs incurred to the client.
(3) Delivery periods and dates promised by KAPS for deliveries and services apply if a fixed period or a fixed date is expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. The start of the specified service or delivery time requires the clarification of all technical questions.
(4) KAPS is not liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, lack of labor, energy or raw materials, or the failure, incorrect or late delivery by suppliers), provided that KAPS is not responsible for these. If such events make the delivery or service significantly more difficult or impossible for KAPS and the hindrance is not only of a temporary duration, KAPS is entitled to withdraw from the contract. In the event of hindrances of only temporary duration, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If, as a result of the delay, the client cannot be reasonably expected to accept the delivery or service, he can withdraw from the contract by immediate written declaration to KAPS.
(5) If it becomes apparent after conclusion of the contract that the claim of KAPS is endangered by the client’s lack of ability to perform, KAPS can refuse the service. The right to refuse performance ceases if the client effects the consideration or provides security for it. KAPS can determine a reasonable period within which the consideration is to be effected or the security is to be provided. After unsuccessful expiry of this period, KAPS is entitled to withdraw from the contract.
(6) KAPS is entitled to make partial deliveries if the partial delivery is usable for the client within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the client does not incur any significant additional effort or additional costs as a result.
(7) If KAPS is in default with a delivery or service or if a delivery or service becomes impossible for it, for whatever reason, the liability of KAPS for damages is limited in accordance with § 7 of these GTC.
§ 5 Place of performance, transfer of risk, acceptance
(1) Place of performance for all obligations arising from the contractual relationship is the registered office of KAPS, unless otherwise specified. If KAPS also owes an installation, the place of performance is the place where the installation is to take place.
(2) The risk passes to the client with the handover of the delivery item to the forwarding agent, carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made or KAPS has taken over other services (e.g. shipping or installation). If the dispatch or handover is delayed as a result of a circumstance caused by the client, the risk shall pass to the client from the day on which the delivery item is ready for dispatch and KAPS has notified the client of this. Storage costs after the transfer of risk shall be borne by the client.(3) A formal acceptance must take place if one of the contracting parties requests it. If no acceptance is requested, the service is deemed to have been accepted upon expiry of 12 working days after written notification of the completion of the service. If no acceptance is requested and the client has put the service or part of the service into use, the acceptance is deemed to have taken place upon expiry of 6 working days after the start of use, unless otherwise agreed.
§ 6 Material defects, claims for defects
(1) Information provided by KAPS on the subject of the delivery or service as well as the representations of the same are authoritative, unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed quality characteristics, but descriptions or markings of the delivery or service. Deviations customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided that they do not impair the usability for the contractually intended purpose.
(2) The warranty period is one year from delivery or, if acceptance is required, from acceptance.
(3) Claims for defects require that the customer has duly complied with his obligations to inspect and give notice of defects owed under § 377 HGB. In the case of a contract for work and services, § 377 HGB applies analogously. After the transfer of risk or acceptance of the product, the customer must immediately examine it for its functionality and notify us in writing of any defects found as well as hidden defects immediately after their discovery, at the latest within a period of 7 days.
(4) If a defect is based on the fault of KAPS, the client can demand compensation under the conditions specified in § 7.
(5) The claims for defects are void if the client changes the delivery item without the consent of KAPS or has it changed by third parties and the removal of defects is thereby made impossible or unreasonably difficult. In any case, the client has to bear the additional costs of the removal of defects caused by the change.
§ 7 Liability for damages
(1) The liability of KAPS for damages, regardless of the legal reason, in particular from impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this § 7, insofar as it depends on a fault in each case.
(2) KAPS is not liable in the case of simple negligence of its organs, legal representatives, employees or other vicarious agents, as far as it is not a violation of essential contractual obligations. An essential contractual obligation is one on which the client relies and may also rely. Essential to the contract are, for example, the obligation to deliver and install the delivery item free of material defects in a timely manner, as well as advisory, protective and custodial obligations that are intended to enable the client to use the delivery item in accordance with the contract or to protect the life or limb of the client’s personnel.
(3) As far as KAPS is liable for damages in accordance with § 7 (2) in principle, this liability is limited to damages that KAPS foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or that KAPS should have foreseen when applying customary care. Indirect damages and consequential damages that are the result of defects in the delivery item are also only compensable if such damages are typically to be expected when using the delivery item as intended.
(4) Exclusions and limitations of liability apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of KAPS.
(5) The restrictions of this § 7 do not apply to the liability of the seller for intentional conduct, for guaranteed quality characteristics, for injury to life, body or health or under the Product Liability Act.
§ 8 Retention of title, guarantee
(1) KAPS retains ownership of the delivery items until receipt of all payments from the business relationship. In the event of breach of contract by the client, KAPS is entitled to take back the delivery item. This withdrawal constitutes a withdrawal from the contract. KAPS is entitled to utilize the delivery item after taking it back, the proceeds of the utilization are to be credited to the liabilities of the customer – less reasonable utilization costs.
(2) The client is obliged to treat the delivery item with care; in particular, he is obliged to insure it at his own expense against fire, water and theft damage. If maintenance and inspection work is required, the client must carry it out in good time at his own expense.
(3) The client is entitled to resell the delivery item in the ordinary course of business; however, he already now assigns to KAPS all claims in the amount of the final invoice amount (including VAT) that accrue to him from the resale against his customers or third parties. The client remains authorized to collect this claim even after the assignment. The authority of KAPS to collect the claim itself remains unaffected. However, KAPS undertakes not to collect the claim as long as the client meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made to open insolvency proceedings.
(4) The processing or transformation of the delivery item by the client is always carried out for KAPS. If the delivery item is processed with other items not belonging to KAPS, KAPS acquires co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing.
(5) If the delivery item is inseparably mixed with other items not belonging to KAPS, KAPS acquires co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the client’s item is to be regarded as the main item, it is agreed that the client transfers proportionate co-ownership to KAPS. The client shall hold the resulting sole ownership or co-ownership in safe custody for KAPS.
(6) The client also assigns to KAPS the claims that arise from the connection of the purchased item with a property against a third party.
(7) KAPS undertakes to release the securities to which it is entitled at the request of the client to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is the responsibility of KAPS.
(8) In the case of a delivery abroad, KAPS is entitled to demand from the client for the purpose of securing the payment claims the handover of an unlimited, self-guaranteeing performance guarantee under German law from a credit institution that is licensed in the EU.
§ 9 Place of jurisdiction, choice of law, final provisions
(1) Place of jurisdiction is the registered office of KAPS; however, KAPS is entitled to sue the customer at his court of residence.
(2) The law of the Federal Republic of Germany applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(3) If the contract or these GTC contain loopholes, those legally effective provisions shall apply to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC if they had known the loophole.