Karl Kaps GmbH & Co. KG, Schulstraße 57, 35614 Asslar

§ 1 Scope

(1) All deliveries, services and offers from Karl Kaps GmbH & Co. KG, Asslar (hereinafter referred to as “KAPS”) are exclusively made based on these General Terms and Conditions (hereinafter referred to as “GTC”), provided the client is a business entity, a legal entity under public law or a special fund under public law. These GTC are part of all contracts that KAPS concludes with its contractual partner (hereinafter also referred to as “Client”) regarding the deliveries or services offered by KAPS. They also apply to all future deliveries, services or offers to the Client, even if they are not explicitly agreed upon again.

(2) The terms and conditions of the Client or third parties do not apply, even if KAPS does not expressly object to their application in individual cases.

§ 2 Offer, Contract Conclusion and Text Form

(1) If an order is to be considered an offer, we can accept it within 2 weeks.

(2) Amendments and modifications to the agreed terms, including these GTC, require text form (§ 126b BGB) for their validity. Except for managing directors or authorised signatories, KAPS employees are not authorised to make any oral agreements deviating from this.

(3) KAPS reserves the right of ownership or copyright to all documents or items handed over or sent by it (offers, cost estimates, drawings, illustrations, calculations, models, etc.). The Client may not make these documents and items accessible to third parties, disclose them, use them himself or through others, or reproduce them without KAPS' express consent.

§ 3 Prices and Payment

(1) Prices apply for the agreed scope of service and delivery. Additional services are charged separately. Prices are quoted in EURO ex works, plus packaging, statutory VAT, customs for export deliveries, as well as fees and other public charges.

(2) Any deduction of a discount requires an explicit agreement.

(3) Offsetting against claims of the Client or retention of payments due to such claims is permissible only 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 fully remunerate a defective or incomplete performance, even though counterclaims equivalent to the cost of remedying defects or finalisation costs are due to him.

(1) Deliveries are made ex works. Upon request and at the Client’s expense, goods can be sent to another specified location.

(2) Unless otherwise agreed, KAPS is entitled to determine the method of dispatch, including the transport company and dispatch route, at its reasonable discretion and charge any incurred costs to the Client.

(3) Dates and deadlines predicted by KAPS for deliveries and services are valid if a fixed deadline or date has been expressly promised or agreed. If dispatch has been agreed, delivery dates and deadlines refer to the time of handover to the carrier, freight forwarder or other third parties authorised with transport. The start of the specified performance or delivery time presupposes the clarification of all technical questions.

(4) KAPS is not liable for impossibility of delivery or delivery delays, provided these are caused by force majeure or other unforeseeable events at the time of contract conclusion (e.g., any kind of operational disruptions, difficulties in material or energy procurement, transport delays, strikes, legal lockouts, shortage of labor, energy or raw materials, or missing, incorrect or untimely delivery by suppliers) unless KAPS is responsible for them. If such events considerably complicate or make delivery or performance impossible for KAPS and the hindrance is not just of temporary duration, KAPS is entitled to withdraw from the contract. In case of obstacles of temporary duration, delivery or performance periods will be extended or delivery or performance dates will be postponed by the duration of the hindrance plus a reasonable start-up period. If the delay makes it unreasonable for the Client to accept the delivery or service, he can withdraw from the contract by immediately providing KAPS with written notice.

(5) If, after contract conclusion, it becomes apparent that the claim of KAPS is jeopardized by the Client's inability to perform, KAPS can refuse performance. The right to refuse performance ceases if the Client effects the consideration or provides security for it. KAPS may set a reasonable deadline within which the consideration must be effected or the security provided. After the unsuccessful expiry of this deadline, KAPS is entitled to withdraw from the contract.

(6) KAPS is entitled to make partial deliveries if these are usable by the Client within the contractual purpose, the delivery of the remaining ordered goods is ensured, and the Client does not incur considerable additional effort or costs.

(7) If KAPS is delayed with a delivery or performance, or if a delivery or performance becomes impossible, for any reason whatsoever, KAPS' liability for damages is limited per the terms of § 7 of these GTC.

§ 4 Place of Performance, Transfer of Risk, Acceptance

(1) The place of performance for all obligations arising from the contractual relationship is the business location of KAPS, unless otherwise specified. If KAPS also owes an installation, the place of performance is the location where the installation is to be carried out.

(2) The risk is transferred to the Client when the delivery item is handed over to the carrier, freight forwarder, or other third party designated for dispatch execution. This also applies if partial deliveries are made or if KAPS has undertaken other services (e.g., dispatch or installation). If there is a delay in dispatch or handover due to a circumstance caused by the Client, the risk is transferred to the Client from the day the delivery item is ready for dispatch and KAPS has notified the Client of this. Storage costs after the transfer of risk are borne by the Client.

(3) A formal acceptance must take place if requested by one of the contractual parties. If no acceptance is requested, the performance is considered accepted 12 working days after written notification of the completion of the performance. If no acceptance is requested and the Client has taken the performance or part of the performance into use, acceptance is considered to have taken place 6 working days after the start of use unless otherwise agreed.

§ 5 Material Defects, Claims for Defects

(1) Information from KAPS regarding the delivery or performance as well as its representations are decisive unless usability for the contractual purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or performance. Commercially usual deviations and deviations due to legal regulations or representing technical improvements, as well as replacement of parts with equivalent parts, are permissible, as long as they do not affect usability for the contractual purpose.

(2) The warranty period is one year from delivery or, where acceptance is required, from acceptance.

(3) Claims for defects require that the customer has properly complied with his examination and notification obligations according to § 377 HGB. In a contract for work, § 377 HGB applies analogously. After the transfer of risk or acceptance of the product, the customer must immediately examine its functionality and report any identified or hidden defects immediately, but no later than a period of 7 days in writing.

(4) If a defect is due to KAPS' fault, the Client can claim compensation under the conditions set in § 7.

(5) Claims for defects are void if the Client changes the delivery item without KAPS' approval or has them changed by third parties and thus the removal of defects becomes impossible or unreasonably difficult. In any event, the Client must bear the additional costs of rectifying defects arising from the change.

§ 6 Liability for Damages

(1) KAPS' liability for damages, regardless of the legal basis, especially due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contractual negotiations, and tortious acts is, where culpability is required, limited according to this § 7.

(2) KAPS is not liable for simple negligence by its organs, legal representatives, employees or other agents unless it is a breach of essential contractual obligations. An essential contractual obligation is one on which the Client relies and may rely. Essential are, for example, the obligation for timely delivery and installation of the defect-free delivery item, as well as advisory, protection and custody obligations which are intended to enable the Client to use the delivery item contractually or to protect the personnel's life or health.

(3) Where KAPS is liable for damages according to § 7 (2), the liability is limited to damages which KAPS foresaw as possible consequences upon contract conclusion or should have foreseen when applying customary care. Indirect damages and consequential damages that result from defects in the delivery item are only compensable if such damages are typically to be expected in intended use of the delivery item.

(4) Liability exclusions and limitations apply to the same extent in favour of the organs, legal representatives, employees and other agents of KAPS.

(5) The limitations of this § 7 do not apply to the seller's liability due to wilful misconduct, for guaranteed characteristics, due to injury to life, body or health, or according to the Product Liability Act.

§ 7 Retention of Title, Guarantee

(1) KAPS reserves the ownership of delivery items until all payments from the business relationship have been received. In case of breach of contract by the Client, KAPS is entitled to take back the delivery item. Taking back the item constitutes withdrawal from the contract. After withdrawal, KAPS is entitled to utilise the delivery item; the proceeds are to be offset against the client's liabilities after deducting appropriate utilisation costs.

(2) The  Client is  obliged to handle the delivery item carefully; especially, he is obligated to insure it at his own expense against fire, water and theft damage. If maintenance and inspection work is required, the Client must carry this out timely and at his own expense.

(3) The Client is entitled to sell the delivery item in the ordinary course of business; he however already assigns all claims to KAPS in the amount of the final invoice amount (including VAT) arising from resale against his customers or third parties. The Client remains authorised to collect these claims even after the assignment. KAPS' right to collect the claim itself remains unaffected. However, KAPS undertakes not to collect the claim as long as the Client fulfils his payment obligations from the collected proceeds, does not fall into arrears, and no insolvency proceedings have been filed.

(4) Processing or modification of the delivery item by the Client is always made for KAPS. If the delivery item is processed with other items not belonging to KAPS, KAPS acquires joint ownership of the new item in proportion to the value of the purchase 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 joint ownership of the new item in proportion to the value of the purchase item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing happens in a way that the item of the Client is considered the main item, it is agreed that the Client transfers joint ownership to KAPS proportionately. The Client holds sole ownership or joint ownership arising in this way for KAPS.

(6) The Client also assigns the claims against a third party arising from connecting the purchase item with a plot of land to KAPS.

(7) KAPS undertakes to release securities upon the Client’s request to the extent that the realisable value of the securities exceeds the claims to be secured by more than 10%; KAPS decides which securities are to be released.

(8) In case of overseas delivery, KAPS is entitled to request from the Client the delivery of an unlimited, self-contained performance guarantee under German law from a credit institution admitted in the EU as security for payment claims.

§ 8 Jurisdiction, Choice of Law, Final Provisions

(1) Jurisdiction is the business location of KAPS; however, KAPS is entitled to sue the client at the client’s residence court.

(2) German law applies exclusively, excluding the CISG.

(3) If the contract or these GTC contain gaps, legally effective regulations that the contracting parties would have agreed in line with the economic objectives of the contract and the purpose of these GTC if they had known about the gap, shall apply.