General Terms and Conditions of KABEA GmbH
The following General Terms and Conditions (GTC) govern the contractual relationship between KABEA GmbH (hereinafter referred to as „Supplier“) and consumers and entrepreneurs who purchase goods and services from KABEA GmbH (hereinafter referred to as „Purchaser“). We do not recognise any terms and conditions that conflict with or deviate from our terms and conditions. The contractual language is German
- General provisions
- The legal relationship between the Supplier and the Purchaser in connection with the deliveries and/or services of the Supplier (hereinafter referred to as „Deliveries“) shall be governed exclusively by these GTC. The Purchaser’s general terms and conditions shall apply only to the extent that the Supplier has expressly agreed to them in writing. The scope of the Supplies shall be determined by the concurrent written declarations of both parties.
- The Supplier reserves its unrestricted property rights and copyrights to cost estimates, drawings and other documents (hereinafter referred to as „Documents“). The Documents may only be made accessible to third parties with the prior consent of the Supplier and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier has permissibly transferred Supplies.
- The Purchaser shall have the non-exclusive right to use the standard software and firmware with the agreed performance features in unchanged form on the agreed devices. The Purchaser may make a backup copy of the standard software without express agreement.
- Partial deliveries are permissible insofar as they are reasonable for the customer.
The term „claims for damages“ in these GTC also includes claims for reimbursement of futile expenses.
- Prices, terms of payment and set-off
- The prices are ex works excluding packaging plus the applicable statutory value added tax.
- If the Supplier has undertaken the installation or assembly and unless otherwise agreed, the Purchaser shall bear all necessary ancillary costs such as travel and transport costs as well as allowances in addition to the agreed remuneration.
- Payments shall be made free Supplier’s paying agent.
- the customer may only set off claims that are undisputed or have been legally established.
III. Retention of title
- The objects of the deliveries (reserved goods) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser; the Supplier shall be entitled to choose between different security interests for the release.
- For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be permitted only to resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of title to the customer conditional upon the customer having fulfilled its payment obligations.
- If the Purchaser resells goods subject to retention of title, it hereby assigns to the Supplier its future claims against its customers arising from the resale together with all ancillary rights – including any balance claims – by way of security, without any further special declarations being required. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the customer shall assign to the supplier that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by the supplier.
- a) The Purchaser is permitted to process the reserved goods or to mix or combine them with other objects. The processing shall be carried out for the supplier. The Purchaser shall keep the resulting new item in safe custody for the Supplier with the due care of a prudent businessman. The new item shall be deemed to be goods subject to retention of title.
b) The Supplier and the Purchaser agree already now that in the event of combination or mixing with other items not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixing. The new item shall be deemed to be a conditional commodity to this extent.
c) The provision on the assignment of claims under No. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed reserved goods invoiced by the supplier.
d) If the Purchaser combines the Retained Goods with real estate or movable property, it shall also assign its claim to which it is entitled as remuneration for the combination, together with all ancillary rights, to the Supplier by way of security in the amount of the ratio of the value of the combined Retained Goods to the other combined goods at the time of the combination.
- Until revoked, the customer is authorised to collect assigned claims from the resale. In the event of an important reason, in particular default of payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Purchaser, the Supplier shall be entitled to revoke the Purchaser’s authorisation to collect. In addition, the Supplier may, after prior warning and observance of a reasonable period of time, disclose the assignment by way of security, realise the assigned claims and demand the disclosure of the assignment by way of security by the Purchaser to the Customer.
- In the event of seizures, attachments or other dispositions or interventions by third parties, the Purchaser shall notify the Supplier without delay. If a justified interest is substantiated, the Purchaser shall immediately provide the Supplier with the information required to assert its rights against the Customer and hand over the necessary documents.
- In the event of breaches of duty by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled to withdraw from the contract in addition to taking back the Retained Goods following the unsuccessful expiry of a reasonable deadline set for the Purchaser to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The customer shall be obliged to surrender the goods. The taking back or assertion of the reservation of title or the seizure of the reserved goods by the supplier does not constitute a withdrawal from the contract unless the supplier has expressly declared this.
- Deadlines for deliveries; default
- Compliance with delivery periods shall be conditional upon the timely receipt of all documents to be provided by the Purchaser, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these preconditions are not fulfilled in time, the periods shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
- If the failure to meet the deadlines is due to
a) force majeure, e.g. mobilisation, war, acts of terrorism, riots or similar events (e.g. strike, lockout),
b) viruses and other attacks by third parties on the supplier’s IT system, insofar as these occurred despite compliance with the usual care in protective measures,
c) obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which the supplier is not responsible, or
d) untimely or improper delivery to the Supplier, the periods shall be extended accordingly.
- If the Supplier is in default, the Purchaser may – provided that it can credibly demonstrate that it has suffered a loss as a result – claim compensation of 0.5% for each full week of default, but in no case more than a total of 5% of the price of that part of the Supplies which could not be used for the intended purpose because of the default.
- The Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies, even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of liability for intent, gross negligence or injury to life, body or health. The Purchaser may withdraw from the contract within the scope of the statutory provisions only if the Supplier is responsible for the delay in delivery. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
- At the Supplier’s request, the Purchaser is obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or insisting on delivery.
- If dispatch or delivery is delayed at the request of the Purchaser by more than one month after notification of readiness for dispatch, the Purchaser may be charged storage costs amounting to 0.5% of the price of the items of the Supplies for each additional month or part thereof, but in no case more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs.
- Transfer of risk
- The risk shall pass to the customer as follows, even in the case of carriage paid delivery:
a) in the case of delivery without installation or assembly, when it has been brought for dispatch or collected. At the request and expense of the Purchaser, the Supplier shall insure the delivery against the usual transport risks;
b) in the case of delivery with installation or assembly, on the day of acceptance in the Purchaser’s own works or, if agreed, after successful trial operation.
- If dispatch, delivery, the start or performance of installation or assembly, the taking over in the Purchaser’s own works or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser is in default of acceptance for other reasons, the risk shall pass to the Purchaser.
- Installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
- The Purchaser shall assume at its own expense and provide in good time:
a) all earthworks, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labour, building materials and tools,
b) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other equipment, fuels and lubricants,
c) energy and water at the place of use, including connections, heating and lighting,
d) sufficiently large, suitable, dry and lockable rooms at the place of assembly for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; furthermore, the Purchaser shall take the same measures to protect the Supplier’s property and the property of the assembly personnel on the site as he would take to protect his own property,
e) protective clothing and protective devices which are necessary due to the special circumstances of the assembly site. Before the start of the installation work, the customer shall provide the necessary information on the location of concealed electricity, gas and water lines or similar installations as well as the required structural data without being asked to do so.
- Before the start of assembly or erection, the materials and objects required for the start of the work must be available at the assembly or erection site and all preparatory work must have progressed to such an extent that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be levelled and cleared.
- If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
- The Purchaser shall immediately certify to the Supplier on a weekly basis the duration of the working hours of the erection personnel and the completion of the erection, assembly or commissioning.
- If the Supplier demands acceptance of the delivery after completion, the Purchaser shall carry this out within two weeks. Acceptance shall be deemed to have taken place if the Purchaser allows the two-week period to elapse or if the Supplies have been put to use, if necessary after completion of an agreed test phase.
The customer may not refuse to accept deliveries due to insignificant defects.
VIII Material defects
The Supplier shall be liable for material defects as follows:
- All parts or services showing a material defect shall, at the Supplier’s discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
- Claims for subsequent performance shall become statute-barred 12 months after the statutory commencement of the limitation period; the same shall apply to rescission and limitation. This period shall not apply if longer periods are prescribed by law in accordance with §§ 438 para. 1 no. 2 (buildings and things used for a building), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (defects of a building) of the German Civil Code (BGB), in the case of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. The statutory provisions on suspension of expiry, suspension and recommencement of the time limits shall remain unaffected.
- Notifications of defects by the customer must be made in writing without delay.
- In the event of a notice of defects, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The purchaser may only withhold payments if a notice of defect is asserted and there can be no doubt as to its justification. The customer shall not have a right of retention if his claims for defects are time-barred. If the notice of defect is unjustified, the Supplier shall be entitled to demand reimbursement of the expenses incurred by it from the Purchaser.
- The supplier shall be given the opportunity to make subsequent delivery within a reasonable period of time.
- If the supplementary performance fails, the customer may – without prejudice to any claims for damages according to No. 10 – withdraw from the contract or reduce the remuneration.
- Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or as a result of particular external influences which are not assumed under the contract, as well as in the case of non-reproducible software errors. If the purchaser or third parties carry out improper modifications or repair work, there shall also be no claims for defects for these and the resulting consequences.
- Claims of the customer for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that expenses are increased because the subject-matter of the delivery has subsequently been brought to another location than the customer’s branch office, unless the transfer is in accordance with its intended use.
- The Purchaser’s right of recourse against the Supplier pursuant to Section 478 of the German Civil Code (BGB) (recourse of the Contractor) shall exist only to the extent that the Purchaser has not concluded any agreements with its customer exceeding the scope of the statutory provisions governing claims based on Defects. Furthermore, No. 8 shall apply mutatis mutandis to the scope of the Purchaser’s right of recourse against the Supplier pursuant to Section 478 para. 2 BGB.
- Claims for damages by the customer due to a material defect are excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb or health and in the event of an intentional or grossly negligent breach of duty by the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Further or other claims of the Purchaser than those provided for in this Art. VIII on account of a material defect are excluded.
- Industrial property rights and copyrights; defects of title
- Unless otherwise agreed, the Supplier shall be obliged to provide the Supplies free from third parties‘ industrial property rights and copyrights (hereinafter referred to as IPR) only in the country of the place of delivery. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time limit set out in Art. VIII No. 2 as follows:
a) The Supplier shall, at its option and expense, either obtain a right to use the IPR with respect to the Supplies concerned or modify the Supplies such that they no longer infringe the IPR, or replace them. If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of rescission or reduction.
b) The Supplier’s obligation to pay damages shall be governed by Art. XII.
c) The aforementioned obligations of the Supplier shall only exist insofar as the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations remain reserved for the Supplier. If the Purchaser ceases to use the Supplies in order to minimise the damage or for other important reasons, it shall be obliged to point out to the third party that such cessation of use does not constitute an acknowledgement of an infringement of the IPR.
- Claims of the customer are excluded insofar as he is responsible for the infringement of the property right.
- Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by an application not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
- In the event of infringements of property rights, the provisions of Art. VIII No. 4, 5 and 9 shall apply mutatis mutandis.
- In the event of other defects of title, the provisions of Art. VIII shall apply accordingly.
- Further claims or claims other than those regulated in this Art. IX against the Supplier and its vicarious agents on account of a defect in title are excluded.
- Reservation of performance
- The performance of the contract is subject to the proviso that there are no obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law as well as no embargos or other sanctions.
- The customer is obliged to provide all information and documents required for the export, transfer or import.
- Impossibility, adjustment of the contract
- If delivery is impossible, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility. However, the Purchaser’s claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. This limitation shall not apply in cases of liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The purchaser’s right to withdraw from the contract remains unaffected.
- If events within the meaning of Art. IV No. 2 a) to c) substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier’s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. If this is not economically justifiable, the Supplier shall be entitled to withdraw from the contract. The same shall apply if required export licences are not granted or cannot be used. If the Supplier intends to exercise this right of withdrawal, it shall notify the Purchaser thereof without undue delay after having become aware of the consequences of the event, even if an extension of the delivery period had initially been agreed with the Purchaser.
XII Other claims for damages
- Unless otherwise provided for in these General Terms and Conditions, claims for damages on the part of the Ordering Party are excluded, irrespective of the legal grounds, in particular due to breach of obligations arising from the contractual obligation and from tortious acts.
- This shall not apply in so far as liability exists as follows:
- a) under the Product Liability Act.
b) in the case of intent,
c) in the event of gross negligence on the part of owners, legal representatives or executive employees,
d) in the event of fraudulent intent,
e) in the event of non-compliance with an assumed guarantee,
f) culpable injury to life, limb or health, or
g) culpable violation of essential contractual obligations.
However, the claim for damages for the breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another of the aforementioned cases applies.
- The above provisions do not imply a change in the burden of proof to the detriment of the customer.
XIII Jurisdiction and applicable law
- The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier’s registered office if the Purchaser is a merchant. However, the Supplier shall also be entitled to bring an action at the Purchaser’s place of business.
- This contract including its interpretation shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIV Binding nature of the contract.
The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.
As at: January 2022