General Terms and Conditions of IKS Klingelnberg GmbH
1. Exclusive validity and acceptance of our General Terms and
Conditions
1.1 All our offers and quotations are based on our General Terms and
Conditions. We accept orders exclusively on
these terms and conditions. General terms and conditions of the Orderer
or any provisions of the Orderer
deviating from our General terms and conditions are not binding on us,
notwithstanding our unconditional
performance in face of our knowledge of such deviating terms and
conditions, unless we recognized and
accepted them expressly in writing.
1.2 By placing an order or accepting performance the Orderer accepts the
validity and applicability of our General
Terms and Conditions with regard not only to the respective transaction
but also all future business transactions.
2. Offers and quotations – ancillary stipulations – contents of contract
– offer documents
2.1 Our offers and quotations are not binding on us; i.e. a contract is
created only after we have accepted the order.
The Orderer’s order is binding on the Orderer and entitles us to accept
the order within two weeks by written
order confirmation or delivery of the ordered good to the Orderer.
2.2 Ancillary stipulations in connection with our offers, quotations and
order confirmations as well as agreements
with our field staff will only be valid if confirmed by us in writing.
In case of doubt or ambiguity regarding the
terms of the contract, our written order confirmation shall prevail.
2.3 We reserve all copy rights and rights of ownership in all documents,
if any, enclosed with our offers (such as
illustrations, drawings, specifications of dimensions and weights, and
similar documents). Such documents must
not be made available to third parties and must be returned to us
without delay upon our request or if the order
is not placed with us.
2.4 Unless otherwise agreed, the products delivered by us and their
possible uses are conclusively described by our
written or pictorial specifications in catalogues or other publications,
such as descriptions, illustrations or
drawings. Any other specifications are not binding on us. Our
specifications are based on our current knowledge
and do not constitute a warranty of workmanship or durability. We do not
assume any liability with respect to our
products’ fitness for a particular purpose, unless such particular
purpose was explicitly specified by us. We
reserve the right to amend our specifications based on technological
advances. Illustrations, drawings,
specifications of dimensions and weights, and similar specifications are
only binding, if agreed to in writing.
2.5 Information and advice with respect to our products are based on our
experiences, and specifications provided
in connection with such information and advice, in particular with
respect to performance, are averaged. Such
information and advice does not render unnecessary the observance of the
processing instructions and the
testing of products supplied with respect to their fitness for a
particular purpose.
3. Prices and payment
3.1 Unless otherwise agreed, our prices are for delivery ex works and do
not include freight, packaging, insurance
costs and turnover tax. We will charge the statutory turnover tax at the
rate in effect at the date of performance.
3.2 The prices agreed upon reflect the costs of wages, material and
energy in effect at the date of the conclusion of
contract. If there is an increase in such costs pending the date of
performance, we are entitled to increase the
agreed-upon price by a commensurable amount proportionate to the amount
of the agreed-upon price
constituting charges for wages, material and energy. Upon request, we
will provide evidence of such increase in
cost.
3.3 Unless otherwise agreed, payments due to us must be made in full,
without any deductions, within 30 days after
our performance. The Orderer will be charged interests at a rate of 8%
p.a. above the applicable base rate as
provided by §247 of the German Civil Code for all overdue payments. We
reserve the right to claim further
damages or losses, in particular with respect to costs of legal
enforcement and bringing of actions. Our field staff
is not authorized to accept payment. Promises to grant a discount are
binding only if the Orderer is not in delay
with respect to the settlement of previous invoices.
3.4 We are entitled to demand, at our discretion, advance payment or the
furnishing of security if, after the
conclusion of a contract, we become aware of circumstances that make the
creditworthiness of the Orderer
appear doubtful or if the Orderer fails to meet its payment obligation
when payment to us becomes due. Upon
occurrence of any of the foregoing events, all our accounts receivable
with respect to the Orderer, including
those from other transactions, shall become due immediately, and to the
extent we have accepted any bills of
exchange that have not yet matured, we can demand immediate payment
against bills of exchange.
3.5 To the extent we accept checks or bills of exchange, such acceptance
is on account of payment, but never with
the effect of discharge, and we are not responsible for the timely
presentation or protest. Discounting and
collection are at the expense of the Orderer; and the Orderer must
reimburse us for these amounts on request
without delay. We are entitled to return bills of exchange if the German
Federal Central Bank (Deutsche
Bundesbank) refuses to accept such bills of exchange.
3.6 The Orderer is not entitled to offset any amounts against our claims
for payment or to effect a right of retention
with respect to amounts due to us. The foregoing does not apply to
offsetting with respect to undisputed claims
or claims that are final.
4. Periods for and dates of performance
4.1 Periods for and dates of performance are only approximate, unless
confirmed expressly as binding.
4.2 A period of performance determined according to its duration begins
with the day immediately following the day
on which full agreement regarding all specifics of the order was
reached, at the earliest with the acceptance of
the order by us, but in no case prior to the furnishing of all records,
documents, permits, releases to be obtained
by the Orderer and the receipt by us of the advance payment, if any, to
be made by the Orderer.
4.3 A deadline for delivery is regarded as having been met if the goods
left our plant or warehouse before the
expiration of such deadline or, in cases where the goods cannot be or
are not to be dispatched, if notice of our
supply readiness was dispatched by our plant or warehouse before the
expiration of such deadline.
4.4 The Orderer may grant us a reasonable grace period for performance
with respect to any deadline not explicitly
marked as „fixed“, and we will only be deemed in default upon the
expiration of such grace period.
4.5 If our performance is delayed on account of circumstances or events
beyond our control (such as war, fire,
strike, lack of means of transportation, general lack of supplies,
disruption of operations and similar events), the
deadline for performance will be extended for the duration of such
events and an additional reasonable start-up
time. The same applies for delays due to our not being supplied
correctly or on time without our own fault. The
consequences of delay will remain excluded for the duration of such
events, independent of whether we were
already in default at the time such events occurred. Each party may
withdraw from the contract if the duration of
such events exceeds a reasonable time period. We will promptly inform
the Orderer of the occurrence of such
events and, in case of our withdrawal, return any payments already made
by the Orderer with respect to the
contract.
4.6 If we are in delay with respect to the performance, the Orderer can
withdraw from the contract, provided such
delay is caused by our fault. Upon request, the Orderer is obligated to
declare within a reasonable time period
whether the Orderer has decided (i) to withdraw from the contract after
the expiration of the deadline for
performance due to our delay and/or to request damages or reimbursement
for expenses in place of
performance or (ii) to insist on our performance. If the Orderer does
not make use of its rights within such time
period, we shall not be obligated to deliver the ordered good or provide
replacements.
4.7 The Orderer shall not be entitled to damages if the date or period
for performance has been exceeded or if were
are in default with respect to performance, unless such delay or default
is caused by our intentional or gross
negligence, or that of our legal representatives or agents, or in cases
of fatal or other injury to body or health. If
delivery on or before a specific date is deemed an essential obligation
under the contract, damages due to the
delay will be limited to 5% of the sales price.
4.8 If goods are not picked up within one month of dispatch of the
notification of our supply readiness, we shall be
entitled to levy warehouse charges for each month or partial month of
such delay in an amount equal to 0.5 % of
the invoice.
4.9 We shall be entitled to compensation of our financial losses if the
Orderer is in default with respect to the
acceptance of supplied goods or fails to fulfil its other duties of
cooperation; and after the expiration of a
reasonable grace period and a corresponding warning, we shall be
entitled to dispose of the goods.
4.10 We shall be entitled to deliver goods in installments and to charge
for each such installment separately.
4.11 If the contract provides for the supply of goods or components
according to drawing or sample, we will be
entitled to deliver and charge, and the Orderer will be obligated to
pay, for a quantity of goods or components
deviating with a plusage or minusage of up to 10 %, and in any case by
least two units, from the agreed upon
quantity.
5. Insurance – dispatch – risk of loss – return of package material
5.1 Upon request and at the expense of the Orderer, we will insure
consignments, other than pick-ups,
consignments to foreign countries, and consignments handled by
forwarding agents or our own vehicles,
against the usual transport risks.
5.2 We dispatch the goods on the dispatch route that in our opinion is
the most favorable dispatch route, unless we
receive special dispatch instructions. The goods are dispatched at the
expense and for the risk of the Orderer.
5.3 The risk of loss of goods, including goods shipped carriage paid and
goods with respect to which we provide
further services, such as installation, will pass to the Orderer upon
the loading of the goods in our plant or – if it is
not possible or not intended to dispatch the goods – with the dispatch
of our notice of supply readiness.
5.4 To the extent we are obligated to accept returns of packaging
material under the Packaging Act the Orderer shall
bear the cost of such return.
6. Reservation of title
6.1 We retain title to the goods supplied by us pending the complete
settlement of all our claims arising from our
business connection with the Orderer, including previous claims for
payment subsumed into current invoices.
Claims for which we accepted checks or bills of exchange are regarded
only as paid when such checks or bill s of
exchange have been duly honored.
6.2 If, due to the fact that goods we supplied to the Orderer are
processed or transformed together with other goods
of the Orderer, we do not acquire co-ownership in the goods of the
Orderer, but lose our ownership rights, then
the ownership or co-ownership of the Orderer in the new goods shall pass
to us immediately upon the creation of
such ownership or co-ownership. The Orderer hereby assigns to us all
contingent rights that might result in the
acquisition of such ownership or co-ownership rights by the Orderer. To
the extent the handing over to us of the
new goods is necessary for our acquisition of ownership or co-ownership
rights, the goods shall be deemed to
have been handed over to us by virtue of the Orderer’s agreement to keep
the goods in custody for us, like a
borrower, or, in case the Orderer is not in possession of the goods, by
the Orderer’s assignment of all rights to
recovery against the possessor, which assignment shall be deemed
affected hereby. Goods with respect to
which we thereby acquire rights of ownership or co-ownership shall be
legally treated like the original goods.
6.3 All claims of the Orderer arising from the resale of any goods in
which we have a right of ownership or co -
ownership (“reserved goods”) shall pass to us immediately upon the
conclusion of the sales transaction,
independent of whether the reserved goods are sold to one or several
buyers. To the extent the reserved goods
are not completely subject to our ownership or are sold toge ther with
goods in which we do not have a right of
ownership, the Orderer’s claims shall be deemed assigned to us only with
respect to an amount equal to the
amount of our invoice for such reserved goods. The Orderer is allowed to
collect the claims assign ed to us. We
shall be entitled to revoke this delegation of authority if the Orderer
fails to fulfill any obligation toward us on time
or if we become aware of circumstances which make our rights seem in
jeopardy.
6.4 We agree to release, upon request of the Orderer, the securities
(goods and claims) to which we are entitled
hereunder, to the extent their value exceeds the claims to be secured by
more than 10 %. The selection of the
securities to be released will be in our discretion. The assessment of
the value of the securities shall be based on
their realizable value.
6.5 If our retention of title loses its validity due to shipment abroad
or for any other reason, the Orderer shall grant us
without delay a security interest in the goods shipped or provide other
security for our claims, which security
must be valid under the laws applicable at the Orderer’s seat and match
as closely as possible the legal concept
of retention of title under German laws.
7. Quality defects - defects of title
7.1 Our performance will reflect the state of the art technology at the
time the order is placed, the applicable legal
requirements and the care customary in our line of business. With
respect to descriptions or specifications about
the goods, their qualities or characteristics, and other specifications,
including technical and commercial
specifications, we will only grant a warranty regarding durability and
specific quality if the particular description or
specification is expressly marked as warranty as to durability or
specific quality.
7.2 To the extent our goods exhibit a quality defect or defect of title
(each, a „defect“) due to reasons already existing
at the time risk of loss passed to the Orderer, the Orderer is entitled
to rectification of defect or replacement, at
our discretion. Necessary costs of such rectification or replacement,
such as costs for labor, material and
transportation, will be assumed by us to the extent these costs are not
increased due to the transfer of such
goods to another location than that of the Orderer, unless such transfer
is customary for goods of that nature.
Replaced components become our property and must be returned to us.
7.3 In case of failure of rectification or replacement, the Orderer is
entitled, at the Orderer’s discretion, and without
prejudice to the Orderer’s possible entitlement to damages and
reimbursement for expenses as described in
Section 8 hereof, to reduce the purchase price or withdraw from the
contract.
7.4 We will be liable for defects only under the following conditions:
a) The defects are not based upon, or attributable to, misuse, incorrect
installation or operation, negligent
handling, use of inappropriate equipment or material by the Orderer of
third parties, natural wear and tear,
electrochemical or chemical impact, unless such actions or events are
attributable to our fault;
b) The Orderer fulfilled its obligations with respect to the inspection
and making of complaints about defects
under §377 German Commercial Code. Complaints about defects must be made
in writing within eight days of
receipt of the good at the agreed upon place of delivery, or, if such
defects could not be discovered in the course
of a proper inspection, within eight day of discovery of such defects;
and
c) The Orderer is not in delay with respect to payments due to us,
taking into account appropriate reductions of
the purchase price as provided in Section 7.8 hereof.
7.5 The Orderer must grant us, after consultation with us, the time and
opportunity to effect all rectification and
replacements we deem necessary in our reasonable judgment. We will not
be liable for any damages resulting
from Orderer’s failure to grant us the necessary time and opportunity
for such rectification or replacement. The
Orderer has the right to remedy the defects or have the defects remedied
by third parties and request
reimbursement from us, only if we are in delay with respect to such
elimination of defects or in cases where such
defects endanger operational safety or might result in disproportional
damages, in which case Orderer must
notify us immediately.
7.6 Claims for material defects become time-barred one year after
delivery. Our liability with respect to replacement
parts or rectification will expire at the end of the limitation period
applicable to the goods delivered originally.
7.7 The Orderer is only entitled to recourse under §478 German Civil
Code to the extent the Orderer’s arrangements
with its purchasers do not provide such purchasers with rights regarding
claims for defects exceeding the rights
required by law. The provisions of the second sentence of Section 7.2
hereof shall be applicable. The Orderer
shall, and shall cause its purchasers that are merchants to, inform us
immediately if claims against the Orderer
are brought with respect to defects on new goods delivered. We reserve
the right to performance with respect to
claims brought against the Orderer by its purchasers, and we shall be
deemed as having satisfied the claims of
the Orderer by having satisfied the claims of such purchasers.
7.8. The Orderer’s reduction in purchase price in connection with
notifications of defects must be proportionate to
such defects.
8.
Claims for damages and reimbursement of expenses
8.1 We will be liable, to the extent provided by law, for claims for
damages and reimbursement of expenses
(collectively, „damages“) brought by the Orderer resulting from our
intentional or gross negligence or that of our
agents and employees. We will also be liable, to the extent provided by
law, for our culpable failure to meet
essential contractual obligations, for fatal and other injuries to body
or health, and to the extent we granted
warranties.
8.2. If we are deemed to have violated an essential contractual duty,
the Orderer will only be entitled to foreseeable,
typical damages, except in cases of intentional or gross negligence or
with respect to claims for fatal or other
injuries to body or health or warranties. In any case, such claims will
become time-barred after one year.
8.3. We hereby expressly disclaim liability for any other damages,
independent of the legal nature of such claim. In
particular, we will not be liable for any damages not constituting
direct damages to the goods supplied, such as
lost profits and other pecuniary losses of the Orderer.
8.4. The specific provisions of these General Terms and Conditions shall
be without prejudice to the mandatory
provisions of the Product Liability Act.
8.5 The Orderer shall not be entitled to reimbursement of expenses in an
amount exceeding the Orderer’s interest in
the performance of the contract.
9. Place of performance – place of venue – applicable laws
9.1 The place of performance for all duties arising from the contractual
relationship, in particular regarding the
performance, taking back of packaging material and payment, shall be
Remscheid.
9.2 Exclusive venue for all disputes relating to the contract, including
actions in connection with checks and bills of
exchange, shall lie in Remscheid. Notwithstanding the foregoing, we
shall also be entitled to bring clai ms against
the Orderer at any location where jurisdiction over the Orderer can be
obtained.
9.3 In the case of foreign country transactions, the entire contractual
relationship shall be subject to the laws of the
Federal Republic of Germany, unless the application of mandatory laws of
another jurisdiction cannot be
excluded. The application of the U.N. Convention on the Sale of Goods
(CISG) is explicitly excluded.
Download our General Terms and Conditions
Machine Knives Saw Blades Service
IKS Klingelnberg GmbH - Industriegebiet Bergisch Born - In der Fleute 18 - 42897 Remscheid - GERMANY
Phone: +49 (0) 2191 969-0 - Fax: +49 (0) 2191 969-111 - info@interknife.com
Copyright © IKS Klingelnberg GmbH
