General terms and conditions of business
§ 1 Applicability of the delivery, service and payment conditions
The following terms and conditions of delivery, performance and payment shall apply to all deliveries and services of Küper GmbH & Co. KG (KÜPER) to companies, legal entities under public law or a special fund under public law. All legal relationships, including future ones, between KÜPER and the CLIENT shall be governed by KÜPER’s Terms and Conditions of Delivery, Performance and Payment in the respective valid form. Deviating provisions, in particular purchasing conditions of the CUSTOMER, are fully contradicted. They shall only become part of the contract if this is expressly agreed in writing.
§ 2 Offer and order confirmation
Our offers are subject to change and, like all agreements between KÜPER and the CLIENT, require the written form. The documents belonging to the offer, such as illustrations, drawings, weights and dimensions are only approximate unless they are expressly designated as binding. KÜPER reserves ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties.
(2) The written order confirmation of KÜPER shall be decisive for the time, type and scope of the deliveries and services as well as the respective price – if issued. Minor changes to the object of delivery and service in construction, form and design as well as in the values specified in the description are permissible for technical reasons if the intended use, quality and functionality are not impaired as a result.
§ 3 Prices, payments, short quantities, samples
1. in the absence of a special agreement, the prices shall apply ex works including loading in the factory and customary packaging for road transport. Added to this is the value added tax at the respective statutory rate. Should additional or increased duties, taxes or other direct and indirect charges – in particular customs duties, levies, currency compensation – be incurred between the conclusion of the contract and delivery due to changes in legal names or jurisdiction, KÜPER shall be entitled to increase the prices accordingly. In the case of agreed delivery and performance periods of more than four months from the conclusion of the contract, KÜPER is entitled to make appropriate surcharges for the cost increases that have occurred in the event of an increase in material or wage costs on the basis of its original price calculation.
2. delivery and return delivery shall in any case be at the cost and risk of the CUSTOMER. This also applies if KÜPER assumes the transport costs or the transport.
All invoices are – unless otherwise agreed in writing – payable immediately and without deduction.
4. if KÜPER decides to accept bills of exchange or checks, this shall only take place on account of performance and not in lieu of performance. KÜPER shall be entitled to revoke the deferment based on the acceptance of a bill of exchange at any time and to demand immediate payment. If bills of exchange are accepted, the bank discount and collection charges shall be charged as of the due date of the invoice and shall be payable immediately in cash.
(5) The CLIENT shall only be entitled to withhold payments on the basis of or offset them against claims if its claim(s) has (have) been acknowledged by KÜPER or has (have) been legally established.
§ 4 Delivery period
1. agreed delivery dates or dates of performance are non-binding for KÜPER unless expressly stipulated otherwise in the written order confirmation.
The delivery period shall commence with the dispatch of the order confirmation, but not before the CUSTOMER has provided the items, documents, approvals, releases to be procured by the CUSTOMER and not before receipt of an agreed down payment. If components to be provided by the CUSTOMER are not delivered at the agreed time or are not delivered free of defects, the delivery period shall be extended by one month for each month commenced plus one additional month.
The delivery deadline shall be deemed to have been met if the delivery item has left the factory or notification of readiness for dispatch has been given by the time the delivery deadline expires.
(4) The delivery period shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lockouts, as well as in the event of the occurrence of unforeseen obstacles which are beyond KÜPER’s control, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur with subcontractors. KÜPER shall not be responsible for the aforementioned circumstances even if they arise during an already existing delay. KÜPER shall inform the CLIENT of the beginning and end of such obstacles as soon as possible in important cases. In the event of delays in delivery of less than two months, compensation for delay shall be excluded. In addition, or when compensation is mandatory, the following shall apply:
(5) If the CLIENT incurs damage due to a delay which has arisen as a result of KÜPER’s own fault, it shall be entitled to claim compensation for the delay to the exclusion of further claims. It shall amount to 0.5% for each full week of delay, but in total not more than 5% of the value of that part of the total delivery which cannot be used in time or in accordance with the contract as a result of the delay.
(6) If shipment is delayed at the CLIENT’s request, the CLIENT shall be charged, beginning one week after notification of readiness for shipment, for the costs incurred by storage, but in the case of storage at KÜPER’s works at least 0.5% of the invoice amount for each month or part thereof of storage. However, KÜPER shall be entitled to dispose otherwise of the delivery item after setting and fruitless expiry of a reasonable deadline and to supply the CLIENT with a reasonably extended deadline. Further claims, in particular rights from § 293 f. (304) BGB shall be retained by KÜPER with crediting of the performance of the CLIENT. The same applies to its rights under §§ 280 et seq. BGB and for the claim for performance.
7. compliance with the delivery period requires the fulfillment of the CUSTOMER’s contractual obligations.
§ 5 Transfer of risk and acceptance
(1) The risk shall pass to the CLIENT at the latest when the delivery parts are made available, i.e. at the beginning of loading in the staging area at KÜPER, even if partial deliveries are made or KÜPER has assumed other services, e.g. the shipping costs or delivery and assembly. Upon the CLIENT’s request, the consignment shall be insured by KÜPER against theft, breakage, transport, fire and water damage as well as against other insurable risks at the CLIENT’s expense.
(2) If the shipment is delayed due to circumstances for which the CLIENT is responsible, the risk shall pass to the CLIENT from the day of readiness for shipment; however, KÜPER shall be obliged to effect the insurances requested by the CLIENT at the latter’s request and expense.
(3) Delivered items shall be accepted by the CUSTOMER, even if they show minor defects, without prejudice to the rights under § 11.
4. partial deliveries are permissible.
§ 6 Refusal of Acceptance / Refusal of Acceptance
(1) If the CLIENT refuses to accept the subject matter of the contract, the delivery or service, KÜPER may set him a reasonable deadline for acceptance or acceptance. If the CLIENT has not accepted or taken delivery of the subject matter of the contract within the period set for it, KÜPER shall be entitled, without prejudice to the right to performance of the contract, to withdraw from the contract and/or to claim damages for non-performance even without setting a deadline. In any case, KÜPER may, even without proof of the actual damage incurred and without prejudice to the possibility of claiming higher actual damage, generally demand 25%, in the case of custom-made products 50%, of the agreed price as lump-sum compensation. The CUSTOMER reserves the right to demonstrate and prove a lesser damage.
2. if acceptance has been agreed or is mandatory, KÜPER shall in any case be entitled to apply for acceptance if there are no longer any significant defects and functional and operational capability is guaranteed. Material defects within the meaning of the order confirmation are those defects which call the suitability into question or significantly impair it. In this case KÜPER shall propose several possible acceptance dates to the CLIENT. The proposal must be received by the CUSTOMER at least two weeks before the envisaged dates. If none of these proposed acceptance dates is accepted by the CLIENT at least two days before such a date and if the CLIENT for its part also does not propose another date which is within four weeks of receipt of KÜPER’s proposal, acceptance shall be deemed to have been declared.
§ 7 Retention of title
All deliveries and services are subject to retention of title. Delivered goods shall remain the property of KÜPER until full payment of the purchase price / fees and all other claims of KÜPER against the CLIENT arising from the current business relationship.
(2) If goods are processed or utilized by the CLIENT, the processing shall be carried out for KÜPER, which shall thus be deemed to be the manufacturer within the meaning of § 950 of the German Civil Code and shall acquire ownership of the intermediate or final product. In the event of processing with other goods not belonging to the CLIENT, KÜPER shall acquire co-ownership of the new item in the ratio of the value of the goods delivered by it to the value of the third-party goods at the time of processing. The same shall apply in the case of connection with other items, irrespective of whether they belong to the CUSTOMER or to third parties.
The CUSTOMER shall be entitled to resell delivered goods within the scope of the agreement made and revocably at any time within the scope of its ordinary business operations. The CLIENT already now assigns to KÜPER by way of security all claims in connection with the resale arising from the business relationship with its customers including ancillary rights in the amount of the value of the goods delivered in each case. KÜPER accepts the assignment. The CUSTOMER is revocably authorized and obliged to notify the assigned claims at any time.
4 KÜPER is entitled but not obliged to insure the delivery item at the CLIENT’s expense against theft, breakage, fire, water and other damage, unless the CLIENT has demonstrably taken out the insurance itself.
The CUSTOMER may neither pledge the delivery item nor assign it as security. In the event of seizure or confiscation or other dispositions by third parties, the customer shall notify KÜPER thereof without delay. Should KÜPER incur damage due to failure to notify or late notification (e.g. due to loss of rights), the CLIENT shall be liable for compensation.
(6) In the event of conduct by the CLIENT in breach of the contract, in particular in the event of default in payment, KÜPER shall be entitled to take back the goods after issuing a reminder and the CLIENT shall be obliged to surrender the goods.
7. the assertion of the reservation of title as well as the seizure of the delivery item by KÜPER shall not be deemed a withdrawal from the contract.
8 KÜPER undertakes to release the securities to which it is entitled upon the CUSTOMER’s request to the extent that the realizable value of the security exceeds the claims to be secured by more than 20%. The selection of the securities to be released shall be incumbent on KÜPER.
§ 8 Liability
1. the CUSTOMER’s right to claim damages on the basis of no-fault claims shall be limited to the cases of
– of intent, gross negligence on the part of KÜPER, its statutory
representatives or vicarious agents,
– of negligent breach of essential contractual obligations (cardi-
– of fraudulent concealment of defects,
– the culpable injury of life, body or health by
KÜPER, its legal representatives or vicarious agents or
– of the defect of an object of delivery and performance, for which, according to the
Product Liability Act for personal injury or property damage to privately used
liability is limited to the items for which liability is assumed.
2. in the event of a negligent breach of essential contractual obligations (cardinal obligations), the claim shall be limited to the amount of the foreseeable damage typical for the contract.
3. further claims for damages are excluded.
4. insofar as claims for damages exist against Küper, its vicarious agents or persons employed by it in the performance of its obligations, these shall become statute-barred within one year from the statutory commencement of the limitation period.
§ 9 Industrial property rights / copyrights / secrecy etc.
1. all rights to patents, utility models and designs, trademarks, equipment and other industrial property rights as well as copyrights for the subject matter of the contract and services shall remain with the holders of the rights. This also applies in particular to product designations, software and name rights.
The contracting parties undertake to treat as business secrets all commercial and technical details which are not public knowledge and which become known to them through the business relationship.
3. drawings, tools, software, molds, devices, models, templates, samples and similar items supplied, used or made available by or for KÜPER are and remain the property of KÜPER. They may not be handed over or otherwise made accessible to unauthorized third parties. If the aforementioned items are manufactured for KÜPER, they shall already become the property of KÜPER upon creation or manufacture. The manufacturer conveys ownership to KÜPER. The reproduction of such items is only permitted within the scope of operational requirements and the provisions of patent law, trademark law, copyright law and competition law.
Contractual partners of the CUSTOMER shall be obliged by the CUSTOMER accordingly.
The CLIENT may only refer to the business relationship with KÜPER in advertising with prior written consent.
§ 10 Collision with rights of third parties
1. if the CLIENT should be held liable by third parties due to direct infringement of property rights, including copyrights due to deliveries and/or services by KÜPER, KÜPER shall indemnify it with regard to the claims for damages recognized against it or determined by way of settlement as well as with regard to court costs and attorney’s fees; this, however, only under the following conditions:
a) The CLIENT shall immediately inform KÜPER of the claim or warning by third parties without having previously taken any steps to defend itself and/or having engaged a lawyer. This does not apply to immediate measures that must be initiated before KÜPER can be informed.
b) Only KÜPER is authorized to initiate defensive measures and to entrust attorneys with the implementation of the defensive measures and/or to issue statements and/or to conduct other negotiations. At KÜPER’s request, the CLIENT shall engage an attorney to represent it at KÜPER’s expense.
c) The CLIENT shall notify KÜPER of the matter without delay and on an ongoing basis and shall in particular provide the necessary information and documents without delay.
2. KÜPER’s liability shall not apply if the infringement of a third party’s right results from a modification of the subject matter of the contract or parts thereof if the subject matter of the contract itself does not constitute an infringement. Furthermore, liability shall lapse in the event that the CLIENT has undertaken further acts of use after being warned by a third party or in the knowledge of a possible infringement of third party rights, unless KÜPER has agreed in writing to further acts of use.
3. in the event that it is legally established that further use of the subject matter of the contract infringes third party industrial property rights, including copyrights, or in the opinion of the CLIENT there is a risk of an industrial property right or copyright action, KÜPER may, at its own expense and at its own choice, either procure for the CLIENT the right to continue to use the subject matter of the contract or replace the subject matter of the contract or modify it in such a way that an infringement no longer exists or is at least less likely. Such measures shall in no case entitle the CLIENT to assert claims – of any kind whatsoever – against KÜPER.
§ 11 Defects, warranties
KÜPER warrants for material defects and defects of title of the delivery or service which were duly notified in due time, excluding further claims – subject to § 8, as follows:
(1) All deliveries or services which prove to be defective as a result of a circumstance prior to the passing of risk shall be repaired or replaced free of defects at KÜPER’s discretion free of charge. The detection of such defects must be reported to KÜPER in writing without delay. Replaced parts become the property of KÜPER.
(2) The CLIENT shall give KÜPER the necessary time and opportunity to carry out all rectifications and/or replacement deliveries which appear necessary to KÜPER after consultation with KÜPER; otherwise KÜPER shall be released from liability for the consequences arising therefrom. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case KÜPER must be notified immediately, the CLIENT shall have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from KÜPER.
(3) Of the direct costs arising from the repair or replacement delivery carried out by KÜPER, KÜPER shall bear – insofar as the complaint proves to be justified – the costs of the replacement item including shipment to the original place of dispatch. Reasonable removal and installation costs shall be reimbursed in accordance with the statutory provisions. The reimbursement is limited in amount to the gross list price of the delivery item and service. If the replacement item is an asset that is subject to natural wear and tear,
(e.g. screen linings for gravel screening) partial wear has already occurred before the part is replaced, the wear that has occurred independently of the defect shall be taken into account when determining the claim for reimbursement of costs.
If the defect is only insignificant, the CUSTOMER shall only be entitled to a reduction of the contract price.
(5) Apart from that, the CLIENT’s claims against KÜPER as a whole or with regard to individual parts shall be limited to a right to subsequent performance. Only in the event of repeated failure of subsequent performance may the CUSTOMER, at its option, reduce the price or withdraw from the contract.
6. no warranty shall be assumed in particular in the following cases: Unsuitable or improper use, faulty assembly, in particular assembly that does not correspond to the state of the art, commissioning and/or improper use by the CLIENT or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, unless KÜPER is responsible for them. Furthermore, no warranty is given for consumables, normal wear and tear and damage due to inadequate storage of the products, in particular contrary to DIN 7716 (storage of rubber products) as well as for adverse changes in the products which are not due to production defects but to natural aging processes of the products.
(7) As a matter of principle, only the quality specifications in the manufacturer’s specific product description on which the contract is based shall be deemed agreed as the quality of the goods. Public statements, recommendations or advertisements by the manufacturer or third parties do not constitute contractual information on the quality of the goods.
8. the warranty period for the replacement part and the rectification of defects shall be six months; however, it shall run at least until the expiry of the original warranty period for the delivery item.
(9) Any improper modifications or repair work carried out by the CLIENT or third parties without prior approval by KÜPER shall void the liability for the consequences resulting therefrom. In these cases the warranty obligation for KÜPER shall expire completely unless the CLIENT proves that the modifications or repair work could not have been causal for the damage.
The warranty period for all deliveries and services shall be 1 year from the statutory commencement of the limitation period.
§ 12 Place of Performance and Jurisdiction
The place of performance for deliveries and services as well as the place of jurisdiction for all liabilities and disputes arising from or in connection with the contractual relationship is KÜPER’s head office or – at KÜPER’s option – the place of its branch office responsible for the delivery/service. KÜPER shall also be entitled, at its option, to bring an action at the headquarters of the CLIENT or at the place of performance of the service. The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The contract language is German.
§ 13 Written form
Subsidiary agreements shall only be effective if they are made in writing. Amendments and/or supplements must be made in writing. This also applies to the waiver of the written form requirement itself.
§ 14 Severability clause
(1) Should any provision of these terms and conditions be or become invalid or should the terms and conditions contain a loophole, this shall not affect the legal validity of the remaining provisions.
(2) In place of the invalid provision, a valid provision shall be deemed to have been agreed which comes as close as possible to that intended by the parties; the same shall apply in the event of a loophole.