General Terms and Conditions

§ 1 Scope of application

(1) All deliveries, services and offers of the company Karle & Rubner GmbH, Im Schosseifen 4, 35713 Eschenburg (hereinafter referred to as “K&R”) are made exclusively on the basis of these General Terms and Conditions (hereinafter referred to as “GTC”), insofar as the contractual partner is an entrepreneur, a legal entity under public law or a special fund under public law. These GTC form an integral part of all contracts that K&R concludes with its contractual partners (hereinafter also referred to as “clients”) for the deliveries or services it offers. They shall also apply in the version valid at the time of conclusion of the contract for all future deliveries, services or offers to the client, even if they are not separately agreed again.

(2) Deviating terms and conditions of the client shall not apply, even if K&R does not separately object to their validity in individual cases. Neither the unconditional delivery/service by K&R nor the acceptance of payment by the client for claims of K&R by the client shall constitute consent to the client’s terms of delivery

(3) The invalidity of individual provisions shall not affect the validity of the remaining provisions of these GTC.

(4) These GTC shall also apply to future similar business relationships between the parties.

§ 2 Conclusion of contract / placing of order

(1) All agreements (including amendments, collateral agreements and supplements) between the supplier and K&R must be made at least in text form (fax, e-mail) or transmitted by means of electronic data interchange. With the exception of managing directors or authorized signatories, K&R employees are not entitled to make any verbal agreements deviating from the above

(2) If an order qualifies as an offer, K&R may accept it within 2 weeks.

(3) K&R reserves the right of 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, disclose them, use them itself or through third parties or reproduce them without the express consent of K&R

§ 3 Prices / Terms of payment

(1) Scope of service and delivery. Extra, additional or special services will be charged separately. Prices are quoted in EURO ex works plus shipping, packaging, statutory VAT, customs duties for export deliveries as well as fees and other public charges. Any incidental costs incurred, such as Allocation costs, parking fees and handling charges are also to be borne separately by the client

(2) The deduction of discounts and rebates requires an express 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.

§ 4 Delivery and delivery time

(1) Deadlines and dates for deliveries and services promised by K&R shall apply if a fixed deadline or a fixed date has been 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 transportation. The start of the specified performance or delivery period is subject to clarification of all technical issues.

(2) The written order confirmation shall be decisive for the scope of delivery.

(3) K&R shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, or the failure of suppliers to deliver or to deliver correctly or on time), provided that K&R is not responsible for them. If such events make delivery or performance significantly more difficult or impossible for K&R and the hindrance is not only of a temporary nature, K&R shall be entitled to withdraw from the contract. In the event of hindrances of only temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the client cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by giving K&R immediate written notice.

(4) K&R shall be entitled to make partial deliveries if the partial delivery can be used by the customer for the contractually intended purpose, the delivery of the remaining ordered goods is ensured and the customer does not incur any significant additional work or costs as a result.

(5) If K&R is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, K&R’s liability for damages shall be limited in accordance with Section 7 of these GTC.

§ 5 Transfer of risk

(1) The place of performance for all obligations arising from the contractual relationship shall be the registered office of K&R, unless otherwise agreed. If K&R is also responsible for installation, the place of performance shall be the place where the installation is to be carried out.

(2) The risk shall pass to the customer when the delivery item is handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if K&R has assumed other services (e.g. shipping or installation). If dispatch or handover is delayed due to a circumstance caused by the customer, the risk shall pass to the customer from the day on which the delivery item is ready for dispatch and K&R has notified the customer of this. Storage costs after the transfer of risk shall be borne by the client.

(3) Formal acceptance shall take place if one of the contracting parties so requests. If no acceptance is requested, the service shall be deemed to have been accepted 10 working days after written notification of completion of the service. If no acceptance is requested and the client has started to use the service or part of the service, acceptance shall be deemed to have taken place 6 working days after the start of use, unless otherwise agreed. In the case of on-call purchases without an exact date, the buyer is obliged to take delivery of the goods at the request of the seller no later than two months after conclusion of the contract, unless otherwise agreed.

§ 6 Liability for defects, warranty

(1) Information provided by K&R on the subject matter of the delivery or service and the representations of the same shall be authoritative unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are 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 permitted, provided they do not impair the usability for the contractually intended purpose.

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

(3) Claims for defects presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code). Section 377 HGB applies analogously to a contract for work and services. After the transfer of risk or acceptance of the product, the customer must inspect it immediately for its functionality and notify us in writing of any defects found and of any hidden defects immediately after their discovery, at the latest within a period of 7 days.

(4) In the event of differences in dimensions and quantities of direct import deliveries, an affidavit must be enclosed by the client. In this respect, subsequent complaints by the client are excluded. Defects that could not be detected during a proper incoming goods inspection must be reported immediately.

(5) If a defect is due to the fault of K&R, the client may claim damages under the conditions specified in § 7.

(6) Claims for defects shall lapse if the client modifies the delivery item or has it modified by a third party without K&R’s consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client shall bear the additional costs of remedying the defect resulting from the change.

§ 7 Liability for damages

(1) K&R’s liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this § 7 insofar as fault is involved.

(2) K&R shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents insofar as this does not involve a breach of material 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 good time as well as obligations to provide advice, protection and care which are intended to enable the client to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the client’s personnel.

(3) Insofar as K&R is liable for damages on the merits pursuant to § 7 (2), this liability shall be limited to damages which K&R foresaw as a possible consequence of a breach of contract when the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.

(4) In the event of liability for simple negligence, K&R’s obligation to pay compensation for property damage and any further financial losses resulting therefrom shall be limited to an amount of € >> per claim, limited to a maximum of two insured events per year (corresponding to the current sum insured under the public liability insurance), even if it is a breach of a material contractual obligation. Upon request, K&R shall send the client a copy of the insurance policy. In the event that the insurer is released from liability due to a breach of obligation by K&R, K&R undertakes to indemnify the client from its own funds up to the amount of cover.

(5) Exclusions and limitations of liability shall apply to the same extent in favor of the executive bodies, legal representatives, employees and other vicarious agents of K&R.

(6) The limitations of this § 7 shall not apply to the Seller’s liability for willful conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§ 8 Liability for damages

(1) K&R shall retain title to the delivery items until all payments arising from the business relationship have been received. If the client acts in breach of contract, K&R shall be entitled to take back the delivery item. This withdrawal constitutes a withdrawal from the contract. After taking back the delivery item, K&R shall be entitled to sell it; the proceeds from the sale shall be set off against the customer’s liabilities – less reasonable costs of sale.

(2) The client is obliged to treat the delivery item with care; in particular, he is obliged to insure it against fire, water damage and theft at his own expense. If maintenance and inspection work is required, the client must carry this out in good time at his own expense.

(3) The client shall be entitled to resell the delivery item in the ordinary course of business; however, it hereby assigns to K&R all claims in the amount of the final invoice amount (including VAT) that accrue to it from the resale against its customers or third parties. The customer shall remain authorized to collect this claim even after the assignment. This shall not affect K&R’s right to collect the claim itself. However, K&R undertakes not to collect the claim as long as the client meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed.

(4) The processing or transformation of the delivery item by the client shall always be carried out for K&R. If the delivery item is processed with other items not belonging to K&R, K&R shall acquire 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) The customer also assigns to us the claims which arise against a third party through the connection of the purchased item with a property.

(6) K&R undertakes to release the securities to which it is entitled at the request of the client to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; K&R shall be responsible for selecting the securities to be released.

(7) In the event of a delivery abroad, K&R shall be entitled to demand that the customer provide an unlimited, directly enforceable performance guarantee from a credit institution licensed in the EU for the purpose of securing the payment claims.

§ 9 Retention of title

(1) K&R shall retain title to all goods delivered until all payments from the current account relationship (business relationship) with the client have been received.

(2) The client is entitled to resell the goods in the ordinary course of business. However, the customer hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of the respective claims of K&R which accrue to him from the resale against his customer or third parties, irrespective of whether the purchased item has been resold without or after processing. If the customer establishes a current account relationship with its customers, the claim assigned to the seller by the buyer shall extend to the respective balance. The client shall remain authorized to collect this claim even after assignment. This shall not affect K&R’s right to collect the claim itself. However, K&R undertakes not to collect the claim as long as the client meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of bankruptcy or composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, K&R may demand that the client discloses the assigned claims and their debtors to K&R, provides all information necessary for collection, hands over the relevant documents and informs the debtors or third parties of the assignment

(3) Any processing or transformation of the object of sale by the client shall always be carried out for K&R. If the purchased item is processed or mixed with other items not owned by K&R, K&R shall acquire co-ownership of the new item in the ratio of the value of the item (final invoice amount, including VAT) to the other processed or mixed items at the time of processing or mixing. The same shall apply to the item created by processing as to the purchased item delivered under reservation of title. If the mixing is carried out in such a way that the client’s item is to be regarded as the main item, it is agreed that the client shall transfer co-ownership to K&R on a pro rata basis. The client shall hold the resulting sole or co-ownership for K&R.

(4) The client shall not be entitled to pledge the reserved goods or to assign them as security without K&R’s consent. The client shall be obliged to notify K&R immediately if third parties seize the goods subject to retention of title so that K&R is able to bring third-party proceedings.

(5) The client is obliged to treat the purchased item with care, in particular he is obliged to insure it adequately at his own expense against fire, water damage and theft at replacement value. In the event of an insured event, the client shall assign the compensation payment received from the insurance company to K&R.

§ 10 Final provisions

(1) Collateral agreements and amendments to the contract must be made in writing to be effective. This also applies in particular to any amendment to this written form requirement, but not to individual agreements between the parties.

(2) The entire contractual relationship between K&R and its commercial contractual partner shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods, unless otherwise agreed individually.

(3) The place of jurisdiction shall be the registered office of K&R. However, K&R shall also be entitled to sue the customer at its general place of jurisdiction. This does not apply if mandatory statutory provisions within the meaning of Article 24, 25 or 26 of the Brussels I Regulation in the version of 12 Dec. 2012 are opposed.

(4) The place of performance for all contractual and statutory claims shall be the registered office of K&R.

(5) Should a provision be wholly or partially invalid or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. Insofar as the contract or these GTC contain loopholes, the parties shall agree on legally effective provisions to fill these loopholes, the content of which corresponds to the economic objectives of the contract and the purpose of these GTC.