Terms and Conditions of sales, delivery, installation and repair
All of our quotations, installations, repairs and after-sales services as well as other transactions and services take place exclusively on the basis of the following terms & conditions. They thus also apply to future business relationships between the parties, even if they are not expressly agreed again.
In the following text, KLEMM BOHRTECHNIK is referred to as Contractor and the customer is referred to as Principal, irrespective of whether the matter at hand is a purchase contract, work contract, contract for work and materials or a service contract.
Deviating terms & conditions of the Principal will not be recognised. They are hereby expressly rejected. They can only be included in the contract after written confirmation has been obtained from us.
Silence in no way indicates acknowledgement or assent.
Assignment or any other form of transfer is excluded without prior consent with respect to all rights and demands of the Principal against the Contractor. This also applies with respect to all future demands and rights.
2. Quotation, conclusion of the contract
Quotations are non-binding. All rights to availability of delivery and prior sale are reserved. Cost estimates are not quotations. Declarations of acceptance require the written or faxed confirmation of the Contractor.
Drawings and dimensional, consumption and performance data are non-binding insofar as they are not expressly designated as binding in the order confirmation. The Contractor reserves the right to make modifications and improvements with respect to construction, use of materials and design, insofar as this does not result in impairment of the usability of the subject of delivery.
The documentation that is pertinent to the quotation such as illustrations, drawings, weight & dimensions data, is only approximate. The Contractor reserves all proprietary rights and copyright to these documents. They must not be made accessible to third parties.
The Principal is responsible for the completeness, correctness and timeliness of implementation of documents that they are to provide or create. If these have been sent electronically to the Contractor, they are only binding if their full receipt has been expressly confirmed by the Contractor.
Technical consultancy services are not a subject of the contract. They are only binding if they are expressly labelled as a subject of the contract and are effected in writing. They do not exonerate the Principal from the obligation of proper and competent use of the products of the Contractor.
3. Written form
Written order confirmation from the Contractor is definitive for the scope of the delivery. There are currently no oral side agreements. Subsequent agreements, contractual amendments and supplements require written confirmation; in particular, this applies to amendment of this clause.
4. Prices and payment conditions
4.1 The prices that form the basis for the quotations and order confirmations exclude packaging, freight or delivery costs, customs duty and border clearance duties, and in the case of spare parts exclude installation, plus the statutory value-added tax that applies on the day of the delivery.
The prices that are valid on the day of delivery are always definitive for cost calculation.
4.2 The payment conditions specified in our invoices, order confirmations and quotations are deemed to apply. In the absence of a deviating written agreement, the prices specified there are to be paid in full before delivery (advance payment).
In the event of non-compliance with the payment conditions or in the event of circumstances of which the Contractor becomes aware after conclusion of the contract and that can reduce the credit-worthiness of the Principal, all demands of the Contractor are immediately due without regard to deferment or the validity of bills of exchange received. In this case, the Contractor is entitled to only perform outstanding services against advance payment or the payment of securities, and after expiry of an appropriate extension period to withdraw from the contract or to require payment of compensation due to non-performance and, without prejudice to the above rights, to reclaim the products that have been delivered under reservation of title at the cost of the ordering party.
4.3 Cheques, bills of exchange are only accepted on account of performance, not in lieu of performance. The Contractor is entitled to refuse to accept cheques or bills of exchange without specifying a reason.
4.4 If, during a delivery period that is longer than 4 months, price changes result as a consequence of an increase in the price of materials, changes in wages and salary developments, etc., the Contractor is entitled to apply a corresponding supplement to the prices that form the basis of the quotation. In the case of successive delivery contracts and other continuous obligations, and in the case of agreed partial deliveries and deliveries agreed on an on-demand basis, the prices that are valid on the day of notification of provision are used for the calculation.
4.5 After the due date, the Contractor charges 9 % interest on maturity in accordance with 352, 353 HGB (German Commercial Code). Assertion of further delay compensation remains expressly reserved. The Principal retains the right to prove to the Contractor that no, or much lower, damages have resulted in consequence of the delay in payment.
4.6 The Principal is only entitled to set-off if the counterclaim is uncontested or has been established as being legally binding. The Principal is only entitled to assert rights of retention as a result of counterclaims from the same contractual relationship.
5. Delivery deadlines
5.1 A delivery or performance time is only binding if it has been expressly confirmed as binding by the Contractor. Delivery and performance times will be adhered to whenever possible. The prerequisite is that all technical and/or organisational details of the contract are bindingly in place at the time of order confirmation. If the Principal does not fulfil their obligation to cooperate the delivery deadline extends in accordance with the delay caused by the Principal.
In the case of the performance of works services, the deadline commences upon transfer or unhindered release of the object of the works services.
5.2 If the Contractor is in default, the Principal is entitled to withdraw from the contract by means of a written withdrawal notice after application, in writing, of an appropriate extension period and fruitless lapse of the deadline. An appropriate extension period is deemed to be at least two weeks in the case of an agreed delivery time of up to six weeks, or at least four weeks in the case of a delivery time of more than six weeks, commencing upon expiry of the agreed delivery or service period or the extended delivery deadline after clarification of all details in accordance with Item 5.1 of these terms & conditions.
Subject to Item 13, compensation claims due to delay are excluded.
5.3 If delays in the delivery of important materials occur with the Contractor or their subcontractor due to unforeseeable, unavoidable events, or due to force majeure, or if circumstances come about for other reasons for which the Contractor is not responsible that prevent or make impossible timely performance of the task, the bindingly-agreed delivery and performance times also extend by the duration of the impediment. If performance of the task becomes impossible as a result of such circumstances, the Contractor's obligation to make the delivery ceases to apply with exclusion of all claims from the Principal. If the impediment lasts longer than three months, after applying an appropriate extension period in writing the Principal is entitled to withdraw from the contract with respect to the not yet fulfilled part.
5.4 The Contractor is entitled to make partial deliveries.
5.5 If shipping is delayed at the request of the Principal, the payment for this may not be subject to delay. In this case, the day of notification of readiness to dis-patch is deemed to be the day of the delivery.
Furthermore, after application and fruitless expiry of an appropriate extension period, the Contractor is entitled to dispose of the subject of the delivery in another way or to deliver it to the Principal with an appropriately extended deadline.
5.6 Claims of the Principal with respect to delayed or late delivery are excluded. Unless the Contractor has acted with intent or through gross negligence. Any claim is restricted to the typical foreseeable damages at the time the contract is concluded. This is restricted to a maximum of 5 % of the delivery value.
5.7 If, at the request of the Principal, the goods are produced in accordance with special measurements and hence cannot be used elsewhere, the damages of the Contractor are to the sum of the full invoice amount. If the Contractor otherwise requests damages, these amount to 30 % of the purchase price. The amount of damages is to be set higher or lower if the Contractor proves higher or the Principal proves lower damages. If the Contractor withdraws from the contract with the consent of the Principal before provision of the ordered goods, at least 30 % of the purchase price is to be paid as compensation for lost profits and incurred costs. Lower damages incurred by the Contractor are to be proven by the Principal.
6. Place of performance and transfer of risk
6.1 Place of performance for all services of the Contractor is their headquarters. Deliveries are made at the risk of the Principal. The risk of loss or deterioration of the item that is to be delivered transfers to the Principal as soon as the item is transferred to the person who is conducting the transportation or has left the Contractor's warehouse for the purpose of shipping, also in the event that partial deliveries are made and the Contractor has taken on other services, e.g. exceptionally the shipping costs or delivery & installation. At the request and cost of the Principal, the goods will be insured by the Contractor against transportation damage and loss. If shipping becomes impossible for reasons that are not the fault of the Contractor, the risk is transferred to the Principal upon notification of readiness to deliver.
6.2 Even if the delivered items have insignificant deficiencies, they are to be accepted by the Principal without prejudice to the rights in Item 11.
7. Warranty / liability for defects
7.1 The Contractor provides a warranty, at their discretion, in the form of repair or replacement, insofar as the cause was already known at the time of the transfer of risks.
If the Contractor does not meet the above obligations within an appropriate time period after a written request has been received from the Principal, or if the contractually-stipulated success is not forthcoming after three attempts have been made to repair or replace the item, the Principal is thus entitled to demand a reduction or to withdraw from the contract. However, there is no right to withdraw in the case of an insignificant defect.
7.2 Complaints about obvious defects must be notified in writing within one week of transfer, or after rendering another service, but in any case before redistribution or installation of the goods. The Contractor must be notified of hidden defects or the absence of promised properties in writing immediately upon detection, but at the latest before the warranty period expires. Otherwise the inspection and notification obligation applies in accordance with §§ 377, 378 HGB.
7.3. The warranty period is 12 months from transfer of risk in the case of purchase contracts, at the latest 14 months from delivery date, otherwise 12 months from acceptance of the subject of the contract.
7.4 If operating or maintenance instructions of the Contractor are not followed, alterations made, parts replaced or consumable material used that do not correspond to the original specification, the warranty is invalidated unless the Principal disproves a corresponding substantiated claim from the Contractor that one of these circumstances has caused the fault in the first place.
7.5 In particular, no warranty is provided in the following cases:
unsuitable or improper use or operation, incorrect installation or commissioning by the Principal or third parties, natural wear, incorrect or careless handling, improper maintenance, unsuitable operating material, deficient building work, unsuitable foundations, chemical, electrochemical or electrical influences insofar as they are not the responsibility of the Contractor.
7.6 The Contractor does not assume liability or responsibility for the suitability of the service or products that are the subject of the contract unless they have expressly assured this. Deviations in the appearance of the subject of the contract delivered by the Contractor and also in descriptions, technical specifications, dimensions, weights, drawings and illustrations are permissible insofar as they represent the current delivery standard and the state of the art.
7.7 In the case of the delivery of used goods a warranty, where legally permissible, is excluded unless the subject of the contract lacks an assured characteristic.
7.8 Consumable and wearing parts are excluded from the warranty unless there is evidence of intent or grossly negligent behaviour.
7.9 If the Principal or a third party carries out improper repairs the Contractor is not liable for the resultant consequences. The same applies to amendments made to the subject of the contract carried out without the prior consent of the Contractor.
8. Returns to stock
If it is agreed that an as-new and unused machine or as-new and unused accessories and spare parts is/are to be returned to stock, the chargeable sale price is reduced by 15 % for handling & storage of the returned items. In the case of the return to stock of used machines, accessories and spare parts, an appropriate price will apply that is based on the overall condition on the day of the transfer to the Contractor. In the case of alterations that are not authorised by the Contractor or continued use until a new device is delivered, any repairs that are necessary to maintain operational availability are to be conducted by the Principal, or the costs thereof are to be borne by them. Unless otherwise agreed, delivery of the items that are to be returned to stock is at the cost and risk of the Principal.
9. Repair / installation
Cost estimates do not contain fixed prices. Trivial exceedances of the estimate are permissible unless the prices have been expressly specified as binding. In the event of additionally required work, a trivial exceedance is deemed to be up to 15 % of the estimated amount.
10. Retention of title
10.1 The Contractor reserves the right of title to the delivered goods until complete payment has been received for the subject of the sale or contract, as well as any other invoice amounts from other transactions that are still unpaid at the same time, including interest and other ancillary costs.
10.2 During the length of the retention of the right of title, the Principal is obligated to secure the reserved property at their own cost against interference from third parties and also to immediately insure it against fire, theft and mechanical break-down in favour of the Contractor, and to verify this upon request. Otherwise the Contractor is entitled to conclude corresponding insurance contracts themselves at the cost of the Principal.
10.3 The Principal hereby assigns any claims for damages and compensation against third parties or insurance companies to the Contractor. The Contractor accepts this assignment.
10.4 In the event of behaviour by the Principal contrary to the terms of the contract, in particular in the case of default of payment, after sending a reminder the Contractor is entitled to recover the subject of the contract or, where applicable, is entitled to demand assignment of the surrender claims of the Principal with respect to third parties. The Principal is obligated to surrender the subject of the contract or, where applicable, to assign the surrender claims.
10.5 Application by the Principal to open insolvency proceedings entitles the Contractor to withdraw from the contract and to immediately demand return of the subject of the contract.
10.6 The Principal is entitled to dispose of the goods that are subject to reservation of title within the framework of the normal course of business, but only as long as they are not in default of payment. They are not entitled to mortgage the reserved goods or to transfer them as security. Seizures, confiscation or other dispositions by third parties are to be immediately communicated to the Contractor. The Principal is obligated to communicate the existence of the reservation of title to the pledgee. This notwithstanding, in all cases the Contractor reserves the right of extended reservation of title in the event that if this becomes invalid, the ensuing claim is to take effect in place of the reservation of title. This claim is hereby thus assigned to the Contractor to the full value of the delivery. The Contractor accepts this assignment.
10.7 In the event of resale of the reserved property to third parties, and irrespec-tive of whether the reserved property is resold without or after processing, as a precaution the Principal assigns at this point all acquired claims and rights gained from the resale to the Contractor until complete payment of the purchase price or the subject of the contract has been made together with interest and costs. The Contractor accepts this assignment.
They undertake to inform the Contractor of the resale in writing.
10.8 Apart from this, the Principal nevertheless undertakes to only assign the products that have been purchased under retention of property in such a way that the Contractor remains the owner of the retained goods.
10.9 In the event of processing of the goods or products of the Contractor by the Principal, the Contractor gains ownership of the newly resultant items under exclusion of § 950 BGB. With respect to combination or mixture with other materials and/or substances, the legal regulations of §§ 947 and 948 BGB are deemed to apply.
10.10 Until written revocation is effected by the Contractor, the Principal is entitled to collect claims from the resale in their own name. Revocation can be effected if the Principal does not properly meet their payment obligations.
10.11 Processing or transformation of the delivered goods always take place for the Contractor as manufacturer, but without obligation from them. If the (co )ownership of the Contractor expires due to combination, it is agreed at this point that the Principal's (co-)ownership of the purchased item is assigned to the Contractor in proportion to the value of the goods (invoice value).
10.12 All payments of the Principal, whether in cash, by cheque, transfer, bill of payment, etc., are only deemed to have been made when they are irrevocably credited to the account of the Contractor, or when any recourse is excluded. The security rights of the Contractor, in particular the retention of title to the delivered goods, remain extant until irrevocable payment of the outstanding amount by the Principal has been made.
11. Export control clause
The Contractor informs the Principal that the deliveries and services under this contract can be restricted or forbidden due to compulsory or non-compulsory national or international legislation, official or court orders including UN resolutions, embargos, customs regulations, EU / US or state sanction lists or any kind of regulation for the control of export, transfer, trade or the transit of dual-use goods (hereinafter jointly referred to as "export law"). The "pamphlet on export control", published on the website under www.bauer.de/pdf/bma/company/Merkblatt_exportkontrolle_en_BMA.pdf, is a component of the contract and is to be accepted and fully complied with by the Principal. The Principal will obligate their personnel, their subcontractors and their commercial agents to comply with the export law.
If delays to delivery or service are caused by the export control law, an agreed delivery deadline is extended by the duration of such a delay as well as the time that is required for resumption of fulfilment of the contract. In the event that the Principal culpably breaches the export law, the Principal undertakes to compensate the Contractor for resultant damages and to exonerate them from indemnity claims and necessary expenditure herefrom.
12. Contractor's right of withdrawal
In the event of unforeseen events in accordance with Item 5 of the general terms and conditions, insofar as they not only insignificantly change the economic importance or contents of the service or have a serious impact on the operations of the Contractor and in the event of subsequently-determined impossibility of performance, the Contractor has the right to withdraw from the contract in full or in part.
The Principal does not have a right to validate claims for damages due to such a withdrawal. If the Contractor wants to validate their right of withdrawal, they must immediately inform the Principal of this state of affairs as soon as they become aware of the impact and consequences of the event, even if they have initially agreed an extension of the delivery time with the Principal.
13. Limitation of liability
13.1 The Contractor, together with their employees or vicarious agents, is only liable for damages – irrespective of their legal reason – in the event of intent or gross negligence.
13.2 Any liability is restricted to the damages that are foreseeable upon concluding the contract and amount to a maximum of 5 % of the delivery value.
13.3 In the event of simple negligence including that of the representatives and vicarious agents of the Contractor, the Contractor is only liable for damages arising from injury to life, personal injury or health.
13.4 The liability for compensation is restricted to damages that occur before expiry of the agreed limitation period for deficiency claims or, if no period is agreed, before expiry of 12 months from the transition of risk and are communicated to the Contractor by the Principal in writing.
13.5 The Contractor is not liable for indirect damages or consequential damages such as loss of production, loss of profit, image loss or lost revenue insofar as these consequential damages were not caused by intent or gross negligence of the Contractor.
13.6 The limitation of liability of the Contractor also applies to their organs, staff members, employees, workers, representatives and vicarious agents and also for personal liability for damages thereof.
13.7 The limitation of liability resulting from 13.1 to 13.6 does not apply insofar as the Contractor maliciously conceals a deficiency or has assumed a guarantee for the condition of the goods. The same applies to claims of the Principal in accord-ance with the Product Liability Act.
All payments must be made in EURO unless otherwise agreed in writing.
15. Data protection
In accordance with § 26 (1) Data Protection Act, we point out that we process all customer and supplier data with the help of electronic data processing.
16. Place of jurisdiction / applicable law
In the case of all disputes arising from this contractual relationship, action is to be brought in the court that is responsible for the headquarters of the Contractor, or for the branch of the Contractor that makes the delivery if the Principal is a registered trader or a legal entity under public law or a holder of special funds under public law. The Contractor is also entitled to take legal action at the headquarters of the Principal.
The law of the Federal Republic of Germany applies exclusively. Over and above the above provisions, German law also exclusively applies to contracts with foreign public limited companies that are domiciled abroad. The laws relating to the standardised international sale of moveable property (UN law) are excluded.
17. Partial invalidity
These conditions as well as all contracts concluded by us also apply in the event that individual clauses of the concluded contracts prove to be invalid. If required, the parties concluding the contract are obligated to agree a valid substitute clause that comes as close as possible to the purpose of the invalid clause.
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