General Terms and Conditions of Sale
1.1 Any delivery of goods and services by us shall be subject to the Terms and Conditions set forth herein to the extent no other agreements have been explicitly made. As far as the client’s general terms and conditions are inconsistent with ours, their application shall be subject to our explicit written approval.
1.2 Any claims held against us may not be assigned to third parties. Section 354a of the German Commercial Code (HGB) shall remain unaffected.
1.3 The sale, resale and the disposal of goods and services including any associated technology or documentation may be governed by German, EU, US export control regulations as well as by the export control regulations of further countries. Any resale of goods to embargoed countries or to denied persons or persons that use or may use the goods for military purposes, ABC weapons or nuclear technology is subject to an official license. Customer declares with his order the conformity with such statutes and regulations and that the goods will not directly or indirectly delivered into countries that prohibit or restrict the import of such goods. Customer declares to have obtained all licenses required for export and import.
2. Information, Consultancy
2.1 Information and consultancy in relation to our goods and services is provided as deemed appropriate from existing experience. Any values quoted as part thereof, especially performance data, represent average values which have been determined through experiments under standard laboratory conditions. We cannot assume any commitment for our products to precisely meet the quoted values and areas of application. Section 10 of these Terms and Conditions governs any issues of liability.
3.1 The prices quoted in our order confirmation shall solely apply. Additional services will be invoiced separately.
3.2 All prices are quoted as net prices and do not include value added tax, which is to be paid additionally by the Customer in the amount specified by applicable law.
3.3 Unless otherwise expressly agreed, our prices are quoted ex works (EXW) our factory in Braunschweig using these Terms and Conditions. The Customer shall bear all additional freight costs, packing costs in excess of standard packing, public fees (including withholding taxes) and duties.
4.1 Unless otherwise expressly agreed, we shall deliver ex works (EXW) our factory in Braunschweig using these Terms and Conditions.
4.2 Delivery periods shall only be binding if expressly agreed in writing. Delivery periods shall begin on the date of our order confirmation, however, in no case prior to settlement of all details relating to an order including the furnishing of any required official certificates. Delivery periods shall be deemed to be met on timely notification of readiness to ship if the goods cannot be dispatched in time through no fault of our own.
4.3 With respect to delivery periods and dates, which are not expressly defined as fixed in the order confirmation, the Customer may -two weeks after expiry of such a delivery period or date- set us an adequate grace period for delivery. We may only be deemed to be in default after expiry of such a grace period.
4.4 Without prejudicing our rights from Customer’s default, delivery periods and dates shall be deemed to be extended by the period of time during which the Customer fails to comply with his obligations to us. In case we do not comply with our obligations we shall only be liable for all types of damages in accordance with section 10 of these Terms and Conditions.
4.5 We reserve the right to carry out a delivery using our own delivery organization.
4.6 We may perform partial deliveries and render partial services if such action would not unreasonably affect the Customer.
4.7 The Customer may rescind the contract after two unsuccessful grace periods unless the hindrance is merely temporary in nature and a delay would not unreasonably affect the Customer.
4.8 Any contractual or statutory right of a Customer to rescind the contract, which the Customer fails to exercise within a reasonable period of time set by us, shall be forfeited.
5. Shipment, Passing of Risk
5.1 Unless otherwise expressly agreed, shipment shall always be carried out at the Customer’s risk. The risk shall pass to the Customer as soon as the goods have been handed over to the person executing the shipment.
5.2 If a shipment is delayed for reasons to be attributed to the Customer, the risk of accidental deterioration, loss and destruction shall pass to the Customer on notification of our readiness to ship. Required storage costs after passing of risk shall be borne by the Customer. This shall not affect any other claims.
5.3 If the Customer defaults in accepting, we shall be entitled to claim refund of any expenditure associated therewith and the risk of accidental deterioration, loss and destruction shall pass to the Customer.
6.1 Payment shall be made in full within 30 days from the date of the invoice. Payment shall be considered to have been made on the day the payable sum is received. Bills of exchange and cheques shall not be deemed payment until after they have been honoured and will be accepted without any obligation to make timely presentation and timely protest.
6.2 Immediately upon default of payment –or from the due date if you are a businessman within the meaning of the German Commercial Code (HGB)– we are entitled to demand default interest of 8 (5 in case the Customer is a consumer) percentage points above the base lending rate p.a.. We reserve the right to claim a higher actual damage.
6.3 Customers may only withhold or offset due payments against their own counter-claims if these are uncontested or have been found to be legally binding.
6.4 Any of our receivables shall be immediately payable in the event of a default in payment, a notice given in protest against a bill of exchange or suspension of the Customer’s payments, independent of the term of the bills of exchange which may have already been accepted. In any of these aforementioned cases, we shall also be able to perform remaining deliveries only against advance payment or provision of security, and, if no such advance payment is made or security provided within a two-week time period, to cancel the contract without fixing another extension term. This shall not affect any further claims.
7. Retention of Title
7.1 Delivered goods shall fully remain our property (goods sold subject to retention of title) until all receivables, on whatever legal grounds, have been fully paid up.
7.2 In case of processing, combining or mixing of goods subject to retention of title with goods of the Customer, we shall be entitled to co-ownership of the new property inasmuch as the invoiced value of goods sold with retention of title relates to the value of the other involved goods. Where our co-ownership becomes null and void due to processing, combining or mixing with other goods, the Customer immediately assigns to us those of his rights of ownership in the new property or compound matter which correspond to the amount of the value of goods subject to retention of our title. He shall also be responsible for holding such rights in safe custody on our behalf and at his own expense. Any rights to co-ownership created as a result of such processing, combining or mixing shall be subject to section 7.1 of these Terms and Conditions.
7.3 The Customer may resell, process, combine or mix with other property, or otherwise integrate goods under retention of title in normal business operations, as long as the Customer is not defaulting. The Customer shall be prohibited from taking any other disposition regarding goods for which we retain title. We shall be promptly notified about any hypothecation or other seizure of goods under retention of title through a third party. All intervention costs will be charged to the Customer if and to the extent that they cannot be collected from such third party. If the Customer grants his buyer additional time for payment of the sales price, Customer shall reserve title in goods resold with retention of our title under the same terms which we have applied when delivering such goods with retention of title. The Customer shall be prohibited from any other kind of resale.
7.4 The Customer immediately assigns to us any receivables resulting from a resale of goods initially sold with retention of our title. These will be used to substitute the goods under retention of title as collateral of the equivalent amount. The Customer shall only be entitled and authorised to resell such goods if his receivables therefrom accrue to us.
7.5 If the Customer resells goods under retention of our title together with goods from other suppliers at a certain total price, Customer shall assign to us his receivables from such resale in the same amount as stated in our invoice for goods initially sold with retention of title.
7.6 If an assigned receivable is included into a current account, the Customer immediately assigns to us that part of the balance which is equivalent to the amount of such receivable, including the final balance from current account operations.
7.7 Until we give notice of revocation, the Customer shall be authorised to collect receivables assigned to us. We shall be entitled to such revocation if the Customer fails to meet his payment obligations under the business relationship with us in due course. If the preconditions for exercising a revocation right are fulfilled, the Customer shall promptly notify us of any assigned receivables with respective debtors, furnish all data required for collection of such receivables, hand over all related documentation and advise the debtors of such assignment. We reserve the right to personally advise the debtors of such assignment.
7.8 If the value of the collateral deposited in our benefit exceeds the amount of secured claims by a total of more than fifty (50) per cent, the Customer shall be entitled to demand that we insofar release securities of our own choice.
7.9 If we claim retention of title, this shall only be understood as rescind of the contract if expressly stated so by us in writing. The Customer’s right to possess goods under retention of title shall be null and void if he fails to meet his contractual obligations.
8. Software Rights
8.1 Software programs will fully remain our property. No program, documentation or subsequent upgrade thereof may be disclosed to any third party, unless with our prior written consent, nor may they be copied or otherwise duplicated, even for the Customer’s internal needs apart from a single back-up copy for safety purposes.
8.2 The Customer is granted a non-exclusive, non-assignable right to use the software, including any related documentation and updates, for no other purpose than that of operating the product, for which such software is intended. For programs and documentation created and delivered at the Customer’s request, we shall grant that Customer single end user licences for non-exclusive non- assignable exploitation.
8.3 Typically, no source programs are provided. This shall require a special written agreement in each particular case.
9.1 The goods claimed to be defective shall be returned to us for examination in their original or equivalent packaging. We shall remedy defects if the warranty claim is valid and
within the warranty period. It is at our discretion whether we remedy the defect by repair or replacement. We shall only bear costs necessary to remedy the defect.
9.2 We shall be entitled to refuse to remedy defects in accordance with our statutory rights. We may refuse to remedy defects if the Customer has not complied with our request to return the goods claimed to be defective.
9.3 The Customer shall be entitled to rescind the contract or reduce the contract price in accordance with his statutory rights, however, the Customer shall not be entitled to rescind the contract or to reduce the contract price, unless the Customer has previously given us twice a reasonable period to remedy the defect which we have failed to observe, unless setting of such a period to remedy defects is dispensable. In the event of rescission, Customer shall be liable for any intentional or negligent actions that cause destruction or loss of the goods as well as for failure to derive benefits from the goods.
9.4 If we maliciously withhold disclosure of a defect or give a quality warranty in accordance with section 444 of the German Civil Code (a representation by the seller that the goods will have certain qualities at the time the risk passes and acceptance by seller of strict liability in the event that they do not), the Customer’s rights shall be governed exclusively by the statutory provisions.
9.5 Any rights of the Customer to receive damages or compensation shall be governed by the provisions in section 10 of these Terms and Conditions.
9.6 Specifications of our goods, especially pictures, drawings, data about weight, measure and capacity contained in offers and brochures are to be considered as average data. Such specifications and data shall in no way constitute a quality warranty but merely a description or labelling of the goods.
9.7 Unless limits for variations have expressly been agreed in the order confirmation, such variation shall be admissible that are customary within the trade.
9.8 We shall not accept any liability for defects in the goods supplied if they are caused by normal wear and tear. The Customer shall have no rights against us in respect of defects in goods sold as lower-class or used goods.
9.9 Any warranty shall be void if operating or maintenance instructions are not observed, if changes are made to deliveries or services, if parts are replaced or materials used that are not in accordance with our original product specifications, unless the Customer can show that the defect in question resulted from another cause.
9.10 Provided that the Customer is a businessman, the Customer shall be obliged to notify defects to us in writing or via fax.
9.11 The limitation period for claims for defects shall be 12 months (24 months in case Customer is a consumer). This shall not apply to Customer’s claims for damages based on damages of body or health caused by a defect for which we are responsible or claims for damages based on our intentional or grossly negligent conduct.
10. Limited Liability
10.1 In case of a breach of contractual obligations, defective deliveries or tortuous acts, we shall only be obliged to compensate damages or expenses –subject to any other contractual or statutory conditions for liability– if we acted intentionally or with gross negligence or in cases of minor negligence, if such negligence results in the breach of an essential contractual duty (a duty the breach of which puts the fulfilment of the purpose of the contract at risk). However, in case of minor negligence, our liability shall be limited to typical damages which are foreseeable at the time of the conclusion of the contract.
10.2 Our liability for losses caused by late delivery due to minor negligence shall be limited to 5% of the agreed purchase price.
10.3 The exclusions and limitations of liability in sections 10.1 –shall not apply in cases of a quality warranty in accordance with section 444 of the German Civil Code (see section 9.4), in cases where we have maliciously failed to disclose a defect, in case of damages resulting from from death, injury to health or physical injury or where the laws on product liability impose overriding liabilities which cannot be excluded.
10.4 The limitation period for claims against us –based on whatever legal ground– is 12 months (24 months in case Customer is a consumer) from the date of delivery to the Customer and in case of tortious claims, 12 months (24 months in case Customer is a consumer) from the date the Customer becomes aware or would have become aware of the grounds giving rise to a claim and the liable person, had the Customer not been grossly negligence. The provisions in this clause shall neither apply in cases of intentional or gross negligent breaches of duty nor shall they apply in cases referred to in section 10.3 of these Terms and Conditions.
10.5 If the Customer is an intermediary seller of the goods obtained from us and the final purchaser of the goods is a consumer, the limitation period for any action of recourse against us by the Customer shall be the period specified by statute.
10.6 Our liability for software supplied by us shall be limited to liability for losses or alteration of data caused by the program; however, we shall not be liable for any losses or alteration of data which could have been avoided by the Customer’s compliance with its duty to secure such data at appropriate intervals and at least once per day.
11. Industrial Property Rights, Copyrights
11.1 In the event of claims against the Customer because of breach of an industrial property right or a copyright in using our deliveries or services in accordance with the contractually defined manner, we shall be responsible to obtain the right for the Customer to continue using such deliveries or services, provided that the Customer gives immediate written notice of such third-party claims and our rights to take all appropriate defensive and out-of-court actions are reserved. If, despite such actions, it proves impossible to continue using our deliveries or services under reasonable economic conditions, it shall be understood as agreed that we may, at our discretion, modify or replace the particular delivery or service for removal of a legal deficiency, or take back such delivery or service with refunding of the sales price previously paid to us less a certain deduction to account for the age of the delivery or service in question.
11.2 The Customer shall have no further claims alleging infringement of industrial property or copyrights provided we have neither violated essential contractual duties nor intentionally or grossly negligently breached contractual duties. We shall have no obligations in accordance with section 11.1 in case breaches of rights are caused by exploiting our deliveries or services in any other manner than contractually defined or by operating these together with any other than our own deliveries or services.
12.1 Customer is obliged to closely observe our goods accompanying documents and to ensure the correct disposal of the goods in accordance with the applicable law.
12.2 In case Customer is a businessman, Customer shall be obliged to dispose the goods at own costs. Customer shall be obliged to transfer this obligation on the purchaser of the goods or parts thereof in case of a resale of the goods. In case the Customer is a Consumer the statutory provisions regarding disposal of waste shall apply.
13.1 Unless otherwise expressly stipulated in writing, no information provided to us in connection with orders shall be regarded as confidential, unless their confidential nature is obvious.
13.2 We point out that personal data in relation to our contractual relationship may be stored by us and may be transferred to companies associated with u, too.
13.3 For further processing of order and submission of bids the corresponding datas of customers (address, contact person…) will be transferred to our representatives.
14.1 The place of jurisdiction, provided that you are a businessman, a legal person under public law or a special fund under public law, shall be the place of business of KITO using these Terms and Conditions. However, we may also take legal action against you at your place of business.
14.2 Governing law shall be the law of Germany with the exclusion of the international conflict of laws provisions thereof and with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14.3 Should any of the clauses of these Terms and Conditions be wholly or partially invalid, the validity of the remaining clauses or parts thereof shall not be affected.
General Terms and Conditions of Purchase
1.1 Any delivery of goods and services to us shall be subject to the Terms and Conditions set forth herein to the extent no other agreements have been explicitly made.
1.2 As far as the client’s general terms and conditions are inconsistent with ours, their application shall be subject to our explicit written approval.
2.1 Our orders and any changes and additions to the orders must be made in writing or text form.
2.2 We are entitled to cancel our order free of charge if you do not confirm our order in unmodified form within two weeks after receipt.
3. Time-limits, consequences of delay
3.1 Agreed time-limits for deliveries of goods and services shall be binding. If delays are expected or occur you shall immediately notify us in writing.
3.2 If you fail to deliver or perform within an additional period of grace set by us, too, we shall without prior notice be entitled to refuse acceptance, rescind the contract or demand compensation for non-performance. We shall be entitled to rescind the contract even if the delay was not your fault. You shall bear any additional costs incurred by us because of your default, especially those resulting from the necessity to purchase from third parties instead.
3.3 The right to demand an agreed contractual penalty for inappropriate performance (§ 341 BGB – German Civil Code) shall be reserved for us until the final payment.
4.1 Prices shall be fixed prices. They shall include all expenses in connection with the goods and services provided by you.
5. Execution, delivery
5.1 You may only subcontract with our consent, unless such contracts are merely for the supply of standard parts. Delivery call orders shall be binding with regard to the nature and quantity of the goods ordered and the delivery time. Part-deliveries shall require our consent.
5.2 All deliveries must be accompanied by a delivery note stating our order number as well as details of the nature and quantity of the contents.
5.3 Deliveries shall generally include customary one-way standard packaging. If reusable packaging is used, it shall be provided on loan. Return of the reusable packaging shall be carried out on your account and risk. If as an exception we take over packaging costs, these costs shall be calculated on basis of verifiable net costs.
5.4 In the event that equipment is delivered, a technical description and instructions for use shall be included free of charge. In case of software products, the delivery obligation shall only have been met once all the (systems and user) documentation has also been delivered. For programs that are specifically developed for us, the program shall also be delivered in source format.
5.5 When you are delivering goods or providing services on our premises you shall obey the directions for non-employees concerning security, environmental and fire protection currently in force.
6. Invoices, payments
6.1 Invoices shall be presented to us with separate post; they shall state our order number.
6.2 Your entitlement to payment shall be due 30 days after receipt of the goods and your invoice or at our choice within 14 days with a 2 % discount. Payment shall be deemed to have taken place on the day our bank has received the transfer order.
6.3 Payments shall not be deemed as acknowledgement that the good or service is in accordance with the contract. In the event that a good or service is defective or incomplete, we shall be entitled, without prejudice to our other rights, to withhold an reasonable amount of payments with regards to debts based on the business relationship until you have performed in accordance with your contractual obligations.
6.4 The cession of your claims against us to third parties shall be excluded.
7. Safety, environmental protection
7.1 Your goods and services must comply with the statutory provisions, especially the provisions relating to safety and environmental protection, including the regulations on hazardous substances, the ElektroG (German Law on the Marketing, Return and environmentally friendly Disposal of Electric and Electronic Equipment) and with the safety recommendations of competent German professional bodies or organizations, such as VDE, VDI and DIN. The relevant certificates and documents must be supplied free of charge.
7.2 You shall be obliged to determine and comply with the currently applicable directives and laws with regards to restrictions on hazardous substances for your components. You shall be obliged not to use banned substances. You shall specify all substances to be avoided and all dangerous substances. If applicable you shall submit safety data sheets (at least in German or English) with your offers and with the delivery note of your first delivery. If you have any evidence that your delivery has violated restrictions on substances or contained banned substances you shall be obliged to immediately inform us.
7.3 With respect to deliveries and the performance of services you alone shall be responsible for compliance with regulations for the prevention of accidents. Any necessary safety equipment and manufacturer’s instructions shall be supplied free of charge.
8. Import and export provisions, customs
8.1 For goods and services from a country (other than Germany) that is within the EU, the EU value added tax identification number shall be quoted.
8.2 Imported goods shall be delivered duty paid. You shall be obliged to provide at your own expense the required declarations and information under Regulation (EC) No.
1207 / 2001, allow checks to be performed by customs officials and furnish the requisite official letters of confirmation.
8.3 You shall be obliged to inform us in writing and detail about any (re-) export license obligations pursuant to German, EU and US export and customs regulations as well as export and customs regulations of the country of origin of the goods and services.
9. Passage of risk, acceptance, title
9.1 Irrespective of the agreed price terms the risk passes to us in case of delivery without installation or assembly upon receipt at the delivery address we have given and in the event of delivery with installation or assembly upon successful completion of our acceptance. Commissioning or use shall not replace our declaration of acceptance.
9.2 We shall acquire property of the delivered goods after payment. Any elongated or extended retention of title shall be excluded.
10. Obligation to examine goods and notification of defects, expenses
10.1 Examination of incoming goods will take place with regards to obvious defects. Hidden defects will be notified as soon as they are detected according to the circumstances of the orderly course of business. You waive the objection of delayed notification for all defects notified to you within 14 days after detection.
10.2 If we return defective goods to you we shall be entitled to debit back to you the invoice amount paid plus a lump sum for expenses of 5% of the price of the defective goods. We reserve the right to proof higher expenses. Your right to proof lower or no expenses shall be reserved.
11. Warranty of defects of quality and title
11.1 Defective deliveries must be replaced immediately by deliveries that are free from defect, and faulty services must be repeated faultlessly. In the event of development or design engineering defects we shall be entitled to immediately assert the rights provided for under section
11.2 You shall require our consent to repair defective goods or services. You shall bear the risk during the time in which the good or service to be delivered is not in our possession.
11.3 If you fail to remedy the defect within an additional reasonable period of grace that we have set we shall be entitled at our own discretion to rescind the contract or reduce remuneration and additionally in either case to demand compensation of damages.
11.4 In urgent cases (especially where operating safety is in jeopardy or for the purposes of preventing an exceptionally high damage or loss), for the removal of insignificant defects and in the event that you are in default of remedying a defect, we shall be entitled, after notifying you and after a reasonably short period of grace has expired, to remedy the defect and any resultant damage or loss ourselves or through third parties at your expense. This shall also apply if you deliver the good or service late and we have to remedy defects immediately so that we do not miss our own delivery deadlines.
11.5 The period of limitation for claims for defects of quality shall be 36 months as from the passage of risk in accordance with section 9.1; the period of limitation for defects of title shall be 10 years as from the passage of risk in accordance with section 9.1. The expiry of the period of limitation shall be suspended from the date of notification of defects until our claim for defects has been fulfilled.
11.6 If you have to deliver or perform in accordance with our plans, graphs or other specific demands, you expressly guarantee the conformity with our demands. If delivery or performance deviates from the demands we shall immediately have the rights under section 11.3.
11.7 Our statutory rights shall in any case be reserved.
12. Repeated default
12.1 If, after receipt of a warning letter, you are again late in supplying essentially identical or similar goods or services, or such goods or services are again defective, we shall immediately be entitled to rescind the contract. In this case we shall be entitled to rescind contracts with regards to future delivery of goods and services on basis of this or another contractual relationship, too.
13. Indemnification in the event of defects
13.1 You shall indemnify us against all claims raised against us by third parties –for whatever legal reason– due to a defect of quality or title or another defect of a product delivered by you and shall also reimburse our expenses necessary for the defense against the claims.
14. Technical documentation, tools, means of production
14.1 All technical documents, tools, in-house standard sheets, means of production, etc., that we provide shall remain our property; all trademark, copyright or other property rights shall remain with us. They, together with all duplicates that you may have been made, must automatically be returned to us as soon as the order has been executed. You shall not be entitled to assert a right of retention in this respect. You may only use the said objects to execute the order. You may not pass them on, or make them otherwise accessible, to unauthorized third parties. The said objects may only be duplicated in so far as it is necessary for the execution of the order.
14.2 In the event that you wholly or partly create the objects mentioned in sentence 1 of section 14.1 for us at our expense, section 14.1 shall apply accordingly. We shall own the objects on a pro rata basis according to our share of the costs of manufacture, and you shall keep these objects safe for us free of charge; we may, at any time, acquire your rights in respect of the object by compensating for expenses that have not yet been amortized and reclaim the object.
14.3 You are obliged to service and maintain the aforementioned objects as well as to mend defects caused by normal wear and tear at your expense. If you, in order to execute our order, subcontract the production of samples and tools to a third party you shall cede to us your claims for cession of property in those tools and samples against the subcontractor.
15. Provision of materials
15.1 Materials that we provide shall remain our property. You shall store them free of charge with due care and diligence. You shall keep them separate from your property and mark them as our property. They may only be used to implement our order.
15.2 In the event that you process or transform the materials provided, this shall be done for us. We shall become the direct owner of the resulting new objects. If the materials provided only constitute a part of the new objects we shall be entitled to ownership of the new objects on a pro rata basis according to the value of the materials provided and contained therein.
16.1 You shall be obliged to handle confidential and not pass on to third parties all non-evident commercial and technical data that you become known to you through our business relationship.
16.2 Our prior written consent shall be required for the manufacture for third parties and exhibition of products manufactured specifically for us, especially those made according to our drawings and manufacturing specifications, for publications relating to ordered goods and services and for references to this order vis-à-vis third parties.
16.3 We point out that personal data in relation to our contractual relationship may be stored by us.
17.1 The place of performance shall be the given delivery address.
17.2 The place of jurisdiction, provided that you are a businessman, a legal person under public law or a special fund under public law, shall be the place of our business (Braunschweig). However, we may also take legal action against you at your place of business.
17.3 Governing law shall be the law of Germany with the exclusion of the international conflict of laws provisions thereof and with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
17.4 Should any of the clauses of these General Terms and Conditions be wholly or partially invalid, the validity of the remaining clauses or parts thereof shall not be affected.