General Business Terms and Conditions

Status: 03/2012

Kubald GmbH
Kubald Allee 2 · 31535 Neustadt · Germany
Tel. +49 5032 896-0 · Fax +49 5032 896-999

§1 Validity

1. All supplies, services and quotations are exclusively made on the basis of these General Business Terms and Conditions. They form part of all contracts which Kubald GmbH (in the following the “seller”) concludes with its contract partners (in the following the “principal”) on the deliveries and services you offered. They shall also apply for all future deliveries, services and quotations to the principal, even if they have not been separately agreed.
2. Business terms and conditions of the principal or third parties do not apply, even if the seller does not explicitly refuse their validity in individual cases. Even if the seller refers to a letter which includes the business terms and conditions of the principal or a third party or refers to them, this is not deemed as agreement to the validity of these business terms and conditions.

§2 Product description

1. The seller is liable for the quality and condition of his products exclusively on the basis of the product descriptions which are enclosed to the delivery of goods or for the descriptions which are available for inspection of the customer in the house of the seller or on the website (www.kubald.com) before purchase. Furthermore, public statements of the seller, manufacturers and assistants are not binding and do not imply any legal effect.

§3 Quotation and contract conclusion

1. All quotations of the seller are subject to change and not binding as far as they have not been expressly identified to be binding or a certain acceptance period is included. The seller may accept orders or contracts within fourteen days after receipt.
2. The written contract concluded including these General Business Terms and Conditions are exclusively decisive for the legal relations between seller and principal. This contract completely reflects all understandings between the contract parties on the subject matter. Verbal promises of the seller before conclusion of this contract are legally not binding and verbal undertakings of the contract parties are superseded by written contracts provided it does not expressly result from them that they shall continue to apply.
3. Supplements and amendments to the agreements made, including these General Business Terms and Conditions, require the written form to become effective. The transmission by fax is sufficient to meet the requirement of the written form, otherwise a transmission by telecommunication means, especially by e-mail, is not sufficient.
4. The seller may add or change individual technical sections of these Business Terms and Conditions by special conditions.
   

§4 Prices and payment

1. The prices specified in the order confirmations apply for the scope of services and supply. Extra services or special services are invoiced separately. The prices are in EURO plus statutory value added tax including export delivery customs and fees and other public expenditures.
2. The invoice is issued on the day of delivery. The respectively agreed payment terms and conditions shall apply. The invoice amounts are due immediately and without any discount. The seller is entitled to demand down payments. Decisive for the date of payment is the seller’s receipt of the money. Cheques are only considered as paid after cashing. Invoices are to be paid 30 days after receipt of invoice. If this payment term is exceeded, the seller has the following rights:
   a. Charging of default interests of 8 percentage points above the base lending rate. The seller expressly reserves the right to prove and assert a higher damage caused by default.
   b. The refusal of further deliveries or deliveries against cash payment independently from all present payments.
   c. The exercise of all rights from expanded and prolonged reservation of ownership.
   d. Other assertion of all demands independently from former agreements and due dates.
   A delay in payment is equivalent to a filing of insolvency proceedings, cessation of payment and significant changes of the previously assumed asset and profit situation.
3. The set-off against counterclaims of the principal or the withholding of payments for such claims is not permitted provided the counterclaims are not contested or have been legally determined. 
4. The seller is entitled to carry out or perform open deliveries or services only with a down payment or the provision of a security if he becomes aware of circumstances on contract conclusion which may impair significantly the creditworthiness of the principal and due to which the payment of the open claims of the seller by the principal arising from the respective contract relation (including from other individual orders for which the same framework agreement applies) are endangered.

§5 Delivery and service performance time

1. The times and dates for deliveries and services announced by the seller are only approximate, except a fix time limit or date was promised or agreed. If a dispatch is agreed, delivery dates and times refer to the time of surrender to the forwarding agent, carrier or third parties engaged with the transport.
2. Without prejudice to his rights for a delay of the principal, the seller may require a prolongation of delivery and service performance periods or a postponement of delivery and service performance dates by the time during which the principal does not meet his contractual obligations to the seller.
3. The seller is not liable for the impossibility to deliver or for delays in delivery provided they have been caused by force majeure or other events which have been unforeseeable at the moment of contract conclusion (e.g. disruption of operation of any type, difficulties in the material or energy provision, transport delays, strikes, legal lockouts, lack of workforce, energy or raw materials, difficulties in obtaining the necessary regulatory approvals, regulatory actions or the missing, incorrect or delayed delivery by the supplier) for which the seller is responsible. If such events significantly impair the delivery or the service for the seller or make them impossible and if this impediment is not temporary, the seller is entitled to withdraw from contract. In case of impediments which are only temporary, the delivery and service performance periods are prolonged or the delivery and service performance dates are postponed by the time of the impediment plus an appropriate start-up time. If acceptance of the delivery or service cannot be expected from the principal due to the delay, he may withdraw from contract by immediate written statement to the seller.
4. The seller is entitled to partial services and partial deliveries if they are reasonable in individual cases and interesting for the principal. 
5. If the seller is in default with a delivery or a service or if he is not able to carry out delivery or perform the service for any reason, the liability of the seller is limited to compensation according to § 8 of these General Delivery Conditions.
6. Minor deviations of size, colour, quality and other commercially usual design aspects are no reason for complaints of the principal.
7. The customer does not acquire any rights to the manufactured production means as tools, models, moulds, appliances, templates, fair draughting, slides, printing screens, CNC programs or similar by payment of the proportionate costs for their manufacture. They remain property of the seller. The seller reserves the right to destroy the above mentioned production means which have not been required for a period of 2 years. The payment of the proportionate costs for the above production means does not generate any other claims of the seller. These costs are part of the work compensation. Drawings and drafts of the seller are protected by copyright. Any duplication, evaluation or transmission to third parties is only permitted with the written approval of the seller.

§6 Place of fulfilment, dispatch, transfer of risk, assembly, acceptance

1. Place of fulfilment for all obligations arising from the contract relation is Hannover, Germany, if not otherwise specified. If the seller also has to carry out installation, the place of fulfilment is the place of installation.
2. Type of dispatch and packaging are at the seller’s discretion conformable to duty. The dispatch is carried out for the account of the principal. 
3. The risk is transferred to the principal on surrender of the delivery item (decisive is here the start of the loading procedure) to the forwarding agent, the carrier or to another third party for dispatch. The same applies even if partial deliveries are carried out or the seller has taken over also other services (e.g. dispatch or assembly). If the dispatch or the surrender is delayed due to a circumstance for which the principal is responsible, the risk is transferred to the principal on the day on which the item to be delivered is ready for dispatch or the seller has announced readiness for dispatch to the principal.
4. The seller takes out insurance against theft, breakage, transport, fire and water damages or other insurable risks for the consignment only on express request of the principal and at his expense.
5. It is required that any assumed assembly work can be carried out without obstacles and delays. 
6. The assembly date indicated by the principal is binding. 
7. It must be possible to move a rolling scaffold according to the applicable accident prevention regulations on the site of installation before start. 
8. Waiting times caused by disruptions of the technically necessary installation process for which the customer is responsible have to be confirmed by the construction management and are charged to the principal according to the valid hourly rates. 
9. Supplies necessary for installation (energy, water, compressed air, construction site equipment, etc.) have to be provided free-of-charge by customer. 
10. In case of an arrival of a completely used truck in vain despite agreement of the date, costs are charged which include the return, unloading and storage of the goods, the new disposition, control and handling as well as the new transport of the goods to the site. As far as agreed, the rates of the framework agreement shall apply. In case of a delivery in vain with partial use of the truck’s capacity, a proportion of the product corresponding to the rate of delivery will be charged respectively, in case of a new delivery three times in total (transport to the site/return/transport to the site). If the principal is not entrepreneur, he is free to prove the occurrence of a minor damage in individual cases.
11. If an acceptance has to take place, the purchased item is deemed to be accepted if 
    • the delivery and the assembly, provided the seller also has to carry out the assembly, are completed;
    • the seller has communicated completion indicating the acceptance according to the above § 6 (11) and requested to carry out the acceptance;
    • twelve working days have passed since delivery or assembly or the principal has started to use the purchased item (e.g. he has commissioned the delivered system) and six working days have passed since delivery or assembly in this case; and
    • the principal has failed to carry out acceptance within this period for another reason than a defect communicated to the seller which makes the use of the purchased item impossible or significantly impairs it.
12. The goods are taken over, even if the principal is in default with the acceptance. If the principal does not accept the purchased goods after expiry of a respite granted or if he declares not to be ready to accept the goods already beforehand, the seller may claim compensation for non-fulfilment. This compensation normally amounts to 30% of the purchase price without special evidence. However, the principal is free to provide evidence that no or only less costs than the costs considered by the seller in the flat sum accrued in connection with the non- acceptance of the goods (delay in acceptance).

§7 Warranty, material defects

1. The warranty period amounts to one year from delivery or from acceptance, provided an acceptance is necessary.
2. The delivered items have to be inspected thoroughly immediately after delivery to the principal or to the third party designated by the principal. They are deemed to be approved if the seller does not receive a written notice of defect regarding obvious defects or other defects identifiable in an immediate and thorough inspection as specified in § 3 (3) clause 2 within seven working days after delivery of the delivery item or otherwise within seven working days after detection of the defect or at any earlier time when the defect has become obvious to the principal during normal use of the delivery item without detailed inspection. The claimed delivery item has to be returned to the seller carriage paid if requested by the seller. In case of a justified notice of defect, the seller shall pay the costs for the most favourable type of dispatch; this does not apply if the costs increase due to a use of the delivery item at another place than the intended place of use.
3. The seller undertakes to provide comments to the complaint within 6 weeks. If the complaint proves to be justified and the goods are still in the original condition of delivery, the seller immediately reworks the item or delivers replacement, however, in case of quality defects only against return of the defective quantity. In case of failure, i.e. inability, unreasonableness, refusal or inappropriate delay of rework or replacement delivery, the principal is entitled to withdraw from contract or reduce the purchase price appropriately.
4. If the seller is responsible for the defect, the principal may claim compensation under the conditions specified in § 8.
5. Warranty expires if the principal has modified the delivery item or has modification of the delivery item carried out by a third party without approval of the seller and the rectification of defect becomes impossible or is aggravated unacceptably due to it. At any rate, the principal has to bear the additional costs of rectification of defects caused by modification.
6. A delivery of used items, as agreed in individual cases with the principal, shall take place with the exclusion of any warranty for material defects.

§8 Liability for compensation due to fault

1. The liability of the seller for compensation irrespective of the legal basis, especially for inability, delay, insufficient or false delivery, contract violation, violation of duties on contract negotiations or prohibited action, is limited in accordance with § 8, insofar as the responsibility is important.
2. The seller is not liable for a simple negligence of his bodies, legal representatives, employees or other vicarious agents, provided it is not a violation of contract-relevant duties. Contract-relevant duties are obligations for a delivery and installation of the delivery item in time and without material defects and consultation duties, protection duties and duties of custody which shall make it possible for the principal to use the delivery item according to contract or to protect life and limb of the principal’s personnel or which shall ensure the protection of the principal’s property against important damages.
3. As far as the seller is liable for compensation on the merits according to § 8 (2), this liability is limited to damages which the seller could have anticipated as possible consequence of a contract violation on contract conclusion or which he must have anticipated with due diligence. Furthermore, indirect damages and consequential damages, the consequence of defects at the delivery item are only eligible to be compensated if such damages could have been typically anticipated in case of an intended use of the delivery item.
4. In case of a liability for simple negligence, the replacement duty of the seller for material damages and the resulting further financial losses are limited to an amount of EUR 1,000,000.00 for each case of loss, even if it is a violation of material contract obligations.
5. The above liability exclusions and limitations apply to the same extent to the benefit of bodies, legal representatives, employees or other vicarious agents.
6. The limitations of this § 8 do not apply for the liability of the seller in case of wilful intent, for guaranteed property features, in case of violation of life, limb or health or according to the product liability act.

§9 Reservation of ownership

1. The goods remain property of the seller until full payment of all claims. Processing and transformation are always carried out for the seller as manufacturer; however, without any commitment for him. If property of the seller expires due to connection, it is agreed already now that the property of the principal in the uniform subject matter is transferred to the seller proportional to the value (invoice value). The principal keeps safe the seller’s property free-of-charge. Goods to which the seller is entitled are referred to as goods subject to retention of title.
2. The principal is entitled to process or sell the goods subject to retention of title in the ordinary course of business as long as he is not in default. For further processing the same applies as for the installation on land or buildings or the use of the goods subject to retention of title for the performance of other contracts for work and labour or contracts for work and material by the principal. Pledging and assignment as security are not permitted. To secure the invoice amount, the principal assigns to the seller already now claims arising from a further sale or on another legal basis (insurance, prohibited action) regarding the goods subject to retention of title. The seller authorises the principal irrevocably to collect any claim assigned to the seller for him on his own account. The principal will communicate assignment to his customer on request of the seller and will provide all necessary documents and information for the collection of the assigned debts.
3. If third parties have access to the goods subject to retention of title, the principal will point out the property of the seller and inform him immediately.
4. The seller undertakes to release the securities he is entitled to on demand of the principal as far as the reliable value of the securities does not exceed the claims to be secured by more than 20%; the seller is responsible for the selection of the securities to be released.

§10 Final provisions

1. Place of jurisdiction for all disputes arising from the business relation between seller and principal is Hannover. Compulsory legal provisions regarding exclusive places of jurisdiction are not affected by this regulation.
2. The relation between seller and principal is exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 does not apply. The application of the VOB (Verbindungsordnung für Bauleistungen) (contracting rules for award of public works contracts) is excluded.
3. As far as the contract or these General Delivery Conditions contain gaps, the legally effective provisions are deemed to be agreed for these gaps which the contract parties would have agreed according to the economic objectives of the contract and the purpose of these General Delivery Conditions if they had known these gaps.
   
   

   Note:

   The principal takes note that the seller saves data from the contract relation according to § 28 Bundesdatenschutzgesetz (German Data Protection Act) for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) as far as necessary for contract performance.