§ 1 Factual scope of application
1. The following terms of delivery shall apply with respect to all offers, deliveries and performances provided by KRAMPEHAREX for companies (CUSTOMERS). They shall be accepted by the CUSTOMER by means of placing of an order, yet by acceptance of the performance at the latest. Any deviating or conflicting terms of the CUSTOMER will not be accepted, unless KRAMPEHAREX has explicitly consented thereto in writing.
2. The present terms shall, in their respective valid version, also apply with regard to all future business relations between the contractual partners; they shall also apply if KRAMPEHAREX, being aware of any deviating or conflicting terms, conducts the delivery to the CUSTOMER without reservation.
3. Any framework agreements concluded between the parties shall basically prevail; yet, the present terms shall apply subsidiarily
§ 2 Offer, order, conclusion of contract
The offers made by KRAMPEHAREX are subject to change, with a maximum validity of four weeks after the placing thereof, unless anything else has been stipulated in the offer in writing. The contract shall only become effective upon the CUSTOMER's written placing of order, provided that the order does not contain any modifications of content and provided that the order is placed within the time limit stipulated in the offer. Otherwise, the contract will become effective upon the issuing of a written confirmation of order by KRAMPEHAREX.
§ 3 Prices and terms of payment
1. Unless anything else is stipulated in the confirmation of order, all prices are quoted „ex works“, exclusive of the packaging costs that are to be charged separately as well as exclusive of the statutory VAT.
2. The purchase price shall be due for payment within 30 days of invoicing without any deduction of cash discount, unless anything else has been stipulated in writing in the offer. After the due date, default interest of 8% p.a. over the base lending rate will be charged. The right to claim additional damages caused by default shall remain unaffected.
3. The CUSTOMER shall only be entitled to set-off rights if his counterclaims are determined to be legally binding, if they are undisputed or if they were acknowledged by KRAMPEHAREX. In addition, the CUSTOMER shall only be entitled to exercise his right of retention if his counterclaim is based on the same contractual relationship.
4. KRAMPEHAREX reserves the right to modify the prices in a reasonable manner if, after conclusion of the contract, there are any cost reductions or cost increases, in particular due to collective wage agreements or changes to material prices. On request, KRAMPEHAREX shall provide respective evidence.
§ 4 Term of delivery
1. The indication of delivery dates shall only be binding to the extent that they were stated in writing in the contract or in the offer / the confirmation of order.
2. Compliance with the delivery term is conditional upon the timely and proper fulfilment of the CUSTOMER’s obligations. The right to plead non-fulfilment of the contract shall be reserved.
3. Even in case of bindingly agreed deadlines and dates and even if they occur during an already existent default, KRAMPEHAREX cannot be held responsible for delays in delivery and performance that are based on force majeure or on events that were unforeseeable for KRAMPEHAREX which not only temporarily make delivery much more difficult or impossible (in particular strike, lock-out, official orders, traffic and operational interruptions, energy shortfall etc.); such delays due to force majeure shall not justify any claims for damages on the part of the CUSTOMER. KRAMPEHAREX is generally free to withdraw from the contract with respect to the part of the contract that has not yet been fulfilled, while the CUSTOMER shall only be free to withdraw from the contract with respect to the part of the contract that has not yet been fulfilled if the default lasts for more than three months. The beginning and the predictable end of such obstacles shall be communicated to the CUSTOMER as soon as possible.
4. To the extent that a default in delivery is based on a grossly negligent breach of contract for which KRAMPEHAREX or its vicarious agents are responsible or on a culpable violation of an essential contractual obligation, the liability for damages shall be limited to the foreseeable damage that typically occurs.
5. Apart from that, in the case of default KRAMPEHAREX shall be liable for each completed week of delay with a lump-sum compensation payment for delay in the amount of 0.5% of the delivery value, however, not more than 5% of the delivery value.
6. In case of default of acceptance or other culpable violation of obligations to cooperate on the part of the CUSTOMER KRAMPEHAREX shall be entitled to demand compensation for the resulting damage, including any possible additional expenditures. Further claims shall remain reserved. In this case, the risk of accidental loss or of accidental deterioration of the goods shall be passed on to the CUSTOMER at the time the default of acceptance or the other violation of obligations to cooperate occurs.
7. KRAMPEHAREX shall at any time be entitled to make partial deliveries and provide partial performances.
§ 5 Transfer of risk; transport insurance
1. Unless anything else is stipulated in the confirmation of order, delivery „ex works“ is assumed to be agreed. 2. At the request and expense of the CUSTOMER, the delivery shall be insured appropriately.
§ 6 Liability for defects; statute of limitation; joint liability
1. In order for the CUSTOMER to exercise any warranty rights, he must duly fulfil all obligations to examine the goods and to report any defects in accordance with § 377 HGB (German Commercial Code).
2. In case of defective goods the CUSTOMER has the right to demand subsequent performance, either by means of rectifying the defect or delivery of a non-defective substitute.
3. In case the subsequent performance according to Par. 2 fails, the CUSTOMER may at his own discretion reduce the purchase price or withdraw from the contract.
4. In case the goods delivered by KRAMPEHAREX are mixed with third party goods without KRAMPEHAREX being aware of this and having consented to it, any warranty and liability shall lapse.
5. In case the CUSTOMER claims contractual damage compensation, KRAMPEHAREX shall be liable for resolution and gross negligence as well as for the culpable breach of essential contractual duties (so-called cardinal obligations), also with respect to their representatives and vicarious agents. Apart from that, all liability is excluded.
6. Unless KRAMPEHAREX is accused of an intentional violation of the contract, the liability for damages shall be limited to the foreseeable damage that typically occurs.
7. Liability for culpable injury to life, limb or health shall remain unaffected; the same applies with respect to the mandatory liability as provided for in the product liability law.
8. The statutory period of limitation for warranty claims is 12 months, calculated from the passing of risk.
9. Any additional liability for compensation beyond that mentioned above is excluded, independent of the legal nature of the claim made. This in particular applies with respect to claims for compensation resulting from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage according to § 823 BGB (German Civil Code). This limitation shall also apply if the customer – instead of asserting a claim for damage compensation – demands the reimbursement of useless expenditure rather than the fulfilment of obligations.
10. To the extent that the liability for damages against KRAMPEHAREX is excluded or restricted, this shall also apply with respect to any personal liability for damages of employees, staff, representatives and vicarious agents of KRAMPEHAREX.
§ 7 Retention of title
1. Until complete receipt of all payments due from the business relationship, the goods shall remain the property of KRAMPEHAREX. In the event of breach of contract by the CUSTOMER, in particular in the case of late payment, KRAMPEHAREX shall be entitled to take back the goods. The taking back of the goods shall constitute a cancellation of the contract. To the extent that the goods are then utilized by KRAMPEHAREX, the proceeds of disposal – minus appropriate costs of disposal – will be set off against the CUSTOMER’s liabilities.
2. The CUSTOMER shall handle the goods carefully and shall, at his own expense, insure them adequately at replacement value against fire, water, breakage and theft damage.
3. In case of seizures or other actions by third parties, KRAMPEHAREX shall be informed immediately in writing so that a third party motion pursuant to § 771 ZPO (German Code of Civil Procedure) may be filed. In the event the third party is not in a position to reimburse KRAMPEHAREX the judicial and extrajudicial costs of such a motion, the CUSTOMER shall be liable for the loss incurred by KRAMPEHAREX.
4. The CUSTOMER may resell the goods that are subject to the retention of title in the course of regular business; however, he already now assigns all accounts receivable arising from such a resale to KRAMPEHAREX, regardless of whether the goods were resold without or following their processing. Notwithstanding the authority of KRAMPEHAREX to collect the accounts receivable itself, the CUSTOMER shall remain entitled to collect the accounts receivable even after the assignment. However, KRAMPEHAREX undertakes not to collect the accounts receivable for as long as the CUSTOMER complies with his payment obligations arising out of the proceeds collected, is not in default of payment and in particular has not filed a motion for the opening of composition or insolvency proceedings and payments have not been suspended. However, if this is the case, KRAMPEHAREX may demand that the CUSTOMER discloses the assigned accounts receivable and the respective debtors, that he provides all information and relevant documents that are necessary for collection and that he advises the debtors of the assignment.
5. In case the goods are processed by the CUSTOMER, said processing is conducted on behalf of KRAMPEHAREX which shall consequently be deemed to be the manufacturer in accordance with § 950 BGB (German Civil Code) and which acquires the ownership of the intermediate or end product. In the case of processing with other items that do not belong to KRAMPEHAREX, KRAMPEHAREX shall acquire the co-ownership of the new product in proportion of the value of the goods delivered by KRAMPEHAREX to the value of the processed third party items at the time of processing. The items created by the processing shall be subject to the same provisions as the goods delivered under reservation.
6. In case the goods are mixed with other items that do not belong to KRAMPEHAREX, KRAMPEHAREX shall acquire the co-ownership of the new product in proportion of the value of the goods delivered by KRAMPEHAREX to the value of the mixed third party items at the time of mixing. If the goods are mixed in a way so that the item of the CUSTOMER is to be regarded as the main item, it is agreed that the CUSTOMER shall assign the co-ownership on a pro-rata basis to KRAMPEHAREX. The CUSTOMER shall keep the so-created co-ownership or sole ownership for KRAMPEHAREX.
7. KRAMPEHAREX undertakes to release the collateral it is entitled to on demand of the CUSTOMER insofar as the realizable value of the collateral exceeds the accounts receivable that are to be secured by more than 20%. The selection of the collateral to be released shall be incumbent on KRAMPEHAREX.
§ 8 Industrial property rights, copyrights; confidentiality
1. KRAMPEHAREX reserves the property rights and copyrights in images, drawings, calculations and other technical documentation and documents. The passing on of documents that are marked as „confidential“ to third parties requires the explicit written consent of KRAMPEHAREX.
2. Inasmuch as KRAMPEHAREX is the owner of other intellectual property rights such as patents, trademarks, utility models or design patents concerning the delivered items, such rights shall also remain with KRAMPEHAREX.
3. The CUSTOMER undertakes to keep all information relating to trade and business secrets – irrespective of whether they are marked as confidential or not – confidential, even after termination of the contractual relationship, to only disclose said information to persons who necessarily need the information in order to reach the contractual purpose and to impose an identical confidentiality obligation on them. In addition, the CUSTOMER undertakes to not use the mentioned information in any way going beyond the agreed purpose without the consent of KRAMPEHAREX and to take all precautions that are necessary to prevent any unauthorized inspection or reproduction.
4. The confidentiality obligation shall not apply with respect to information that is available to the general public or that is made available to the CUSTOMER without violating the confidentiality obligation.
5. Any tools, software, patterns, devices, templates, designs, models and similar items delivered, used or made available by or to KRAMPEHAREX are and shall remain the property of KRAMPEHAREX. They shall not be handed over or made available to unauthorized third parties. The aforesaid shall also apply with respect to metering machines, unless anything else is stipulated in a separate written agreement. If the afore-mentioned items are manufactured for KRAMPEHAREX, they shall become the property of KRAMPEHAREX already at the time they are manufactured or made. Such items may be reproduced only in the framework of operational requirements and in accordance with the respective provisions of industrial property law.